The latest Standard Operating Procedure issued by the Karnataka High Court on 18 January 2021 withdraws the relaxation made to the dress code of the Advocates. The Advocates are expected to follow normal dress code with effect from 1st February 2021.

Read the SOP Notification PDF

M.B.Adinarayana vs The State of Karnataka and others. Writ Petition 2073/2020 and connected matter decided on 4 January 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/312451/1/WP2073-19-04-01-2020.pdf

Relevant paragraphs: 1 and 5. The question which arises for consideration in both the petitions is whether the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act,  1963 (for short ‘the said Act of 1963) as amended by the Karnataka Parliamentary Secretaries Allowances (Amendment)  Act,  1999 is constitutionally valid? The said Act of 1963 empowers the Hon’ble Chief Minister to appoint Parliamentary Secretaries from amongst the members of the Karnataka Legislative Assembly and the Karnataka Legislative Council.  The basic challenge is on the ground that the State Legislature lacked the legislative competence to make the said Act.   The other challenge is on the ground that for all intents   and purposes, the Parliamentary Secretaries are on par with the Ministers and the said Act enables the Hon’ble Chief Minister to cross the ceiling on number of Ministers prescribed under Article 164 (1-A) of the Constitution of India. Therefore, the said Act infringes the aforesaid Constitutional provision. These  are broadly the two main grounds on which challenge has been incorporated.

11. It is true that there is no specific provision under the said Act, which specifically lays down that the Parliamentary Secretaries shall be entitled to the status of Hon’ble Ministers or Ministers of State or Deputy Ministers to whom, the Hon’ble Governor administers the oath of office on the advice of the Hon’ble Chief Minister. But, the said Rules show that there is hardly any difference between the role of a Deputy Minister or a Minister of State without independent charge and a  Parliamentary Secretary. The most of the duties and functions of Parliamentary Secretaries are akin to the Legislative duties of a Deputy Minister or a Minister of State without independent charge.  The drastic amendments made by the amendment Act  of 1999 makes the intention of the Legislature  very  clear.  Firstly, as stated earlier, by the amended Act, a provision was made for the first time that the  Parliamentary Secretaries shall  be entitled to the salaries and allowances equivalent to the salaries and allowances admissible to the Hon’ble Ministers.

Judgment of the Supreme Court in Bimolangshu Roy (dead) through Lrs –vs- State of Assam and another (2018) 14 SCC 408) relied on.

19. The Apex Court has held that the State Legislature has no competence to enact a law providing for appointment of Parliamentary Secretaries. Moreover, the said  Act does not confer any privileges on the members of both Houses as legislators qua Legislature.

24. There is another aspect of the case based on the provisions of Article-164 (1-A) of the Constitution. We have already held in paragraph-11 above that there is hardly any difference between the role of a Deputy Minister and a Parliamentary Secretary. On a conjoint reading of the various provisions of the said Act and the said Rules, we have already come to the above conclusion, which shows that for all intents and purposes, the office of the Parliamentary Secretaries has trappings of the post of Hon’ble Ministers of State without independent charge or at least Hon’ble Deputy Ministers. The said Act will work as a devise available to the Hon’ble Chief Minister to appoint the members of the  Legislative  Assembly and Legislative Council of his choice as parliamentary Secretaries, who cannot be made as Ministers  due  to constraints of Article 164(1-A). This will completely defeat and nullify the upper ceiling limit imposed by Article 164(1-A) of the Constitution of India on number of Ministers. Hence, even otherwise, the said enactment is ultra vires the constitutional mandate in Article 164(1-A).

We hold that the State Legislature of Karnataka had no legislative competence to enact the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act, 1963 as amended by Act No. 7 of 1999.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

The High Court of Karnataka, Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum, ordered notice in a Public Interest Litigation filed by Samaj Parivarthan Samudaya challenging the appointment of Sriyuts – M.P. Renukacharya , Mahadev Prakash, Mohan A. Limbikai , Sunil G.S., Shankargowda Patil, M.B. Marmkal and Laksminarayana as advisors to Chief Minister and conferring Minister status to them. The writ petition questioned the appointments as violative of Article 164(1A) of the Constitution of India. Read the petition.

Writ Petition 787/2021 (PIL) PDF below

Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302

Judgment Link: https://main.sci.gov.in/jonew/judis/31173.pdf

PDF Copy

HELD: 4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.

5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.

6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Parmanand Patel v. Sudha A. Chowgule, (2009) 11 SCC 127.

Judgment Link: https://main.sci.gov.in/jonew/judis/34044.pdf

PDF Copy:

HELD: 23. A Receiver, having regard to the provisions contained in Order 40 Rule 1 of the Code of Civil Procedure, is appointed only when it is found to be just and convenient to do so. Appointment of a Receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint a Receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit.

24. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a Receiver would not be appointed unless a case has been made out which may deprive the defendant of a de facto possession. For the said purpose, conduct of the parties would also be relevant.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Mohd. Laiquiddin v. Kamala Devi Misra, (2010) 2 SCC 407.

Judgment Link: https://main.sci.gov.in/jonew/judis/35888.pdf

Relevant paragraphs: 22. The sole issue raised by the respondents in this appeal, who are the appellants in Civil Appeals Nos. 4411-12 of 2002, is whether the finding of the courts below that the partnership firm stood dissolved on account of death of one of the partners was correct in the light of the express provisions of the Partnership Act, namely, Section 42(c) of the same.

23. Before we proceed to examine the correctness of this concurrent finding arrived at by the courts below, it is necessary to examine the relevant provisions of the Partnership Act, 1932 and the relevant clauses of the partnership deed entered between the original plaintiff and the original defendant. “Partnership” is defined under Section 4 of the Act which reads as under:

“4. Definition of ‘partnership’, ‘partner’, ‘firm’ and ‘firm name’.—‘Partnership’ is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.”

24. Section 42 of the Act reads as under:

“42. Dissolution on the happening of certain contingencies.—Subject to contract between the partners a firm is dissolved—

(a) if constituted for a fixed term, by the expiry of the term;

(b) if constituted to carry out one or more adventures or undertakings, by the completion thereof;

(c) by the death of a partner; and

(d) by the adjudication of a partner as an insolvent.”

25. Dissolution of a partnership firm on account of death of one of the partners is subject to the contract entered into by the parties. In this context, it is pertinent to refer to the terms of the deed of partnership. Clause 22 of the partnership deed reads as follows:

“The partnership shall be in force for a period of 42 years certain from this date and the death of any partner shall not have the effect of dissolving the firm.”

This clause clearly states that death of any partner shall not have the effect of dissolving the firm. However, in the facts and circumstances of the case, we are not in a position to give absolute effect to this clause of the deed of partnership.

26. The learned counsel for the respondents contended that since the parties agreed that in spite of the death of any of the partners, the firm shall continue for 42 years irrespective of the death of the original plaintiff (since deceased). They further argued that it clearly contemplates that the legal representative of the partner, who dies, would be under a duty to enter into a fresh deed of partnership. The legal representatives were precluded from claiming benefits if they deny entering into a fresh partnership agreement.

27. In order to arrive at the conclusion that the partnership firm stood dissolved on account of death of one of the partners, the High Court had rightly placed reliance on S. Parvathammal v. CIT2 wherein the High Court held that in a firm consisting of two partners on account of death of one of the partners, the firm automatically is dissolved and observed as follows: (ITR pp. 161-62)

“… a partnership normally dissolves on the death of a partner unless there was an agreement to the contrary. There was no such agreement in the original partnership deed. Even assuming that there was such an agreement, in a partnership consisting of two partners, on the death of one of them, the partnership automatically comes to an end and there is no partnership which survives and into which a third party can be introduced. Hence, on the death of S, the original partnership was dissolved. The subsequent taking in of the assessee as a partner was only as a result of the entering into of a new partnership between R and the assessee. Partnership was not a matter of heritable status but purely one of contract.”

In the light of the aforementioned case, it is clear that when there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise. A partnership is a contract between the partners. There cannot be any contract unilaterally without the acceptance by the other partner.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Dr. Jayasheela Venu and another vs A.J.F. D’Souza and others. Regular First Appeal 1225/2011 decided on 15 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358438/1/RFA1225-11-15-01-2021.pdf

Locus Classicus = An authoritative passage from a standard work that is often quoted as an illustration.

Appeal allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Shivangouda vs Savita. Civil Petition 200006/2019 decided on 4 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358444/1/CP200006-19-04-01-2021.pdf

Relevant portion: It would be relevant to note that the basic principle governing the granting of a petition under Section 24 CPC is that the petition is not to be dealt with in a light hearted manner and transfer of a case from one Court to another should not be granted readily for any fancied notion of the petitioning litigant because of the reason that such transfer of a case from one Judge to another in effect casts a doubt on the integrity, competence and reputation of the concerned Judge. Unless and until a sufficiently cogent ground is disclosed, transfer should not be allowed as a matter of course. For the purpose of such transfer, balance of convenience of the parties should be considered. It is well established that whenever Courts are called upon to consider the plea of transfer in matrimonial matters, the convenience of the wife is relevant consideration.

I can say only this much that “unless the balance is strongly in favour of petitioner, the respondent’s choice of forum should rarely be disturbed”. This is strong language. However, in matrimonial cases, it is readily understandable that a strong preference should be given to the forum and Court chosen by the wife.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Bangalore Turf Club Limited vs State Information Commissioner. Writ Petition 18449/2015 and connected matters decided on 13 January 2021. Justice P.B. Bajanthri.

Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf

Relevant paragraphs: 28. In this context, it is necessary to reproduce
extract of the KIC order dated 01.07.2013 (Sri Umapathi S
vs PIO & The Secretary, BTC, (Para.10 and 11 of
W.P.18449/2015) “Firstly, land measuring
32,17,995 Sq.Ft, where the Bangalore Race
Court is existing was given on lease to the
Bangalore Turf Club as per the lease agreement
dated 09-09-1923 and except the collection of
betting tax, entertainment tax and license fee,
no other revenue was collected in respect of the
land till GO No.FD 14 CRC67 dated 02-11-1968
was issued by the Government. In the aforesaid
GO, lease amount of Rs.50,000/- per annum was
fixed and later it was enhanced to Rs.1,00,000,
5,00,000, 30,00,000. However, on the request
of the Turf Club to treat it on par with the KSCA
or Golf Club as a sports activity, and modify the
decision fixing the lease amount at
Rs.30,000,00/- per year was considered by the
government and issued the GO dated 05-09-
2000 leasing from 01-01-1989 to 31-12-1999
and from 01-01-2000 to 31-12-2009 for lease
amount of Rs.10,000,00/- per year and thereafter to increase @ 10% per year. Considering (a) the location of the land in the
heart of the Bangalore Metropolitan City, (b)
extent of 32,17,995 Sq. Ft of land being
leased FREE for 45 years from 09-09-1923 to
02-11-1968, (c) and then at the rate of
Rs.50,000/- per year i.e., at a very meager
rate of Re.0.015/- sq ft, and (d) then again at
a very meager rate of Re.0.92 per sq. ft. per
year for over a period of 21 years from 01-01-
1989 to 31-12-2009 (see CAG report), it is
evident to note that the government has
indirectly financed the Club.”

29. In the aforementioned writ petition in
W.P.58192/2013, the order of KIC dated 16.09.2013
(UMAPATI S vs Secretary, Mysore Race Club
Limited., Mysore, relevant Paras. 9, 10 and 11 reads as
under: “9) In the Government Order
No.FD.21.CRC.94 Bangalore dated 30-11-1996 it is
stated that an area of 153 acres and 39 guntas of
land in SY. Nos.4 and 74 of Kurubarhalli, Mysore
Kasaba Hobli has been leased on lease amount of
Rs.80,000/- Per Annum for the first five years
period, thereafter, lease rent was Rs.1.6 lakhs per
annum from 5-2-1985 to 31-3-1986, from 1-4-
1986 to 31-3-1991 it was Rs.1.6 lakhs per annum,
from 1-4-1991 to 31-3-1996 lease amount was
Rs.2 lakhs per annum, from 1996 to 2001 it was
Rs. 2.5 lakhs per annum and from 1-4-2001 to 31-
3-2006 lease amount was Rs. 2.75 laksh per
annum. From 1-4-2006 lease was ot renewed till
5-3-2013 and on 5-3-13 same has been renewed
vide Government Order PWD.213.BMS.2007
Bangalore dated 5-3-13 and Annual Lease amount
is fixed at the rate of 2% of the Annual Gross
Income of Mysore Race Club Ltd.”

7.2.82 Scrutiny of records in four test-checked
divisions revealed that fixation of concessional
rent while leasing Government lands/buildings
for non-charitable commercial purposes in
respect of four premises resulted in foregoing of
revenue of Rs.630.94 crore for the period from
1 April 2003 to 31 March 2008 as mentioned
below:

30. Perusal of the aforesaid information, it is
evident that petitioners have availed concession of lease
amount. If one takes note of the market value as on the
date of various lease deeds, it is evident that larger
chunk of monetary gains has favoured the petitioners
from the State Largesse. In fact, State Government
should have resorted to distribute the State Largesse
while adhering to Article 14 of the Constitution, Courts
have time and again held that State Largesse is required
to be distributed while adhering to Article 14 of the
Constitution.

31….one has to come to the conclusion that
State Largesse had not been distributed in the manner
known to law. At the same time, each of the petitioners are
beneficiaries of State Largesse at a concessional rate as is evident from the records and findings given by the KIC in its
orders read with audit reports.

32. It is necessary to take note of what is meant by
‘Largesse’ – Government is simply funding its Largesses
towards private charities anyway, and politicizing the nonprofit world to an unprecedented degree in the process

Compiled by S. Basavaraj, Advocate, Daksha Legal. raj@dakshalegal.com

Bangalore Turf Club Limited vs State Information Commissioner. Writ Petition 18449/2015 and connected matters decided on 13 January 2021.

Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf

Relevant paragraphs: 2. In these petitions, contesting respondents –
complainants filed applications seeking certain information from
the respective petitioners. In not providing information sought
or in not taking any action on their application, contesting
respondents resorted to approach KIC and KIC passed order
against each of the petitioner.

30. …it is evident that petitioners have availed concession of lease
amount. If one takes note of the market value as on the
date of various lease deeds, it is evident that larger
chunk of monetary gains has favoured the petitioners
from the State Largesse. In fact, State Government
should have resorted to distribute the State Largesse
while adhering to Article 14 of the Constitution, Courts
have time and again held that State Largesse is required
to be distributed while adhering to Article 14 of the
Constitution

31..one has to come to the conclusion that
State Largesse had not been distributed in the manner
known to law. At the same time, each of the petitioners are
beneficiaries of State Largesse at a concessional rate as is evident from the records and findings given by the KIC in its
orders read with audit reports.

32. It is necessary to take note of what is meant by
‘Largesse’ – Government is simply funding its Largesses
towards private charities anyway, and politicizing the nonprofit world to an unprecedented degree in the process.

33. Further, the following would come under the
definition of ‘Largesse’ viz., synonyms of ‘Largessee’ are
bestowal, comp, donation, durative, faining, free bie, gift,
give away, handsel, lagniappe, present, presentation, alms,
benefaction, beneficence, benevolence, charity,
contribution, dole, hand out, oblation, offering,
philanthropy, tithe, grant, subsidy, remberance, tribute,
valentine, bonus, boon, windfall, courtesy, favour,
generosity, sacrifice, gratuity, propine, award, prize,
reward, liberalise. If these meanings are taken into
consideration for the purpose of State Largesse, one has to
draw inference that each of the petitioners are the beneficiary of substantially financed by way of indirectly
by funds provided by the Government.

36. No-doubt each of the petitioners were not
controlled by the Government of Karnataka in any manner
and at the same time Section 2(h) of Act, 2005 are to be
read independently from Section 2(h)(a) to (d)and (i) and
(ii). If part of (d) and (i) and (ii) ingredients are taken into
consideration, petitioners would fall under the definition of
‘public authority’, since, monetarily each of the petitioners
were beneficiary as their lease deeds revealed that they have been given substantial financial aid/concession.

47. In view of the principle laid down in the case of
THALAPPALAM’s supra and DAV supra, it is crystal clear
that Section 2(h) is required to be taken note of “and
includes any” (i) and (ii) are to be read independently.
Petitioners are all non-government organizations and who are all benefited from the State like indirectly funded by the
State Government, while availing at concessional rate in
respect of leased out land in favour of each of the
petitioner. Consequently, non-government organization
whoever benefited by directly or indirectly by funds
provided by the appropriate Government would fall under
‘‘public authority’’ under Section 2(h) of Act, 2005. Since
substantial financing can be both direct or indirect. To give
an example, if a land in a city is given free of cost or on
heavy discount to hospitals, educational institutions or such
other body like sports club, this in itself could be substantial
financing. The very establishment of such an institution, if
it is dependent on the largesse of the State in getting the
land at a cheap price, would mean that it is substantially
financed. Further, the value of the land will have to be
evaluated not only on the date of allotment but even on the
date when the question arises as to whether the said body
or NGO is substantially financed. In Writ Petition
No.58192/2013 the order of KIC dated 16.09.2013 at
para.10 reveals the following details of extent of land, building leased and the period of lease, lease rent to be
released, amount of lease rent released and revenue
foregone:

50. If these material information is taken into
consideration, one has to draw inference that petitioners
do fall under the definition of ‘public authority’ under Act.

Petitions dismissed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.