Relevant paragraphs: It is basic to the law of elections that in a democracy, the mandate of people as expressed at the hustings must prevail and be respected; that is why the election of a successful candidate is not readily upset for askance; a heavy onus lies on the petitioner who seeks to void the election, to make out a clear case, both in terms of pleadings & proof; an election petition and a suit proceeding differ from each other in their nature & scope; it is a settled position of law that all “material facts” must be pleaded by the party in support of the case set up by him for voiding an election; ordinarily, if some facts inadvertently or otherwise are not pleaded can be loaded to the pleadings by amendment provided that, leave therefor is sought before the expiry of the period of limitation prescribed for filing the petition; this again is subject to all just exceptions; the underlying object of this is to enable the victorious candidate, to know the specific case which he has to meet.
Right to amend the pleadings even after the limitation period has expired avails in the realm of election law although it’s exercise is conditioned by the factors such as nature & substance of amendment, delay & latches, the stage of proceedings & the like, is not much in dispute since the provisions of CPC are made mutatis mutadis applicable to the trial of election petitions vide Sec.24 of the Karnataka Municipalities Act, 1964; where challenge is laid on the ground of corrupt practice, the right to amend the pleadings is limited to introducing “amplificatory particulars” of a corrupt practice not previously averred in the petition but does not extend to introducing the material facts, as such; by the subject amendment the respondent seeks to introduce the details of undisclosed properties to the petition, which are already stated in great details in the List of Documents which accompanied the original petition from the day one; even copies of documents were also filed; both the sides having understood what is what, accordingly have drawn the battle lines; that being the position, it cannot be gainsaid that the amendment introduces the material facts, when it only amplifies of what are there already.
Ved Mitra Verma v. Dharam Deo Verma, Civil Appeal. 153 of 2009 decided on 31:7:2014.Reported in 2014 (15) SCC 578
Judgment: Justice Ranjan Gogai and Justice S.A.Bobde
Aggrieved by the judgment and order of reversal passed by the Gauhati High Court at Guwahati, Shillong Bench, this appeal has been filed.
The respondent Dharam Deo Verma had filed an application in the Court of Additional Deputy Commissioner at Shillong under Section 276 of the Indian Succession Act, 1925 (for short “the Act”) for grant of letters of administration in respect of a will dated 20-11-1974, claimed to have been executed by his father late Satyanand Verma. The learned trial court rejected the application holding the circumstances surrounding the execution of the will to be suspicious. In appeal, the High Court reversed the said verdict by an elaborate judgment.
The correctness of the view taken by the High Court has been sought to be assailed by contending that the reversal of the verdict of the learned trial court overlooks a series of suspicious circumstances which, it is contended, ought to have been taken into account to hold that execution of the will by the testator in favour of the present respondent has not been proved.
The suspicious circumstances, according to the appellant, may be enumerated in seriatim hereinunder: (i) That the will dated 20-11-1974 excludes all other children of the testator to the exception of the beneficiary thereof i.e. the respondent herein. No basis therefor is disclosed. (ii) In the will, the name of the daughter Vidyalakshmi Devi having been wrongly mentioned as Piplakshmi Devi. This is a glaring fact which raises serious doubts as regards the authenticity of the will. (iii) That the testator Satyanand Verma, was at the relevant point of time, suffering from ill-health which incapacitated him from executing the will; (iv) That the application before the learned trial court under the provisions of the Act was filed after nearly 17 years of the execution of the will; and lastly (v) That the attesting witnesses have passed away in the meantime. The execution of the will centres round the evidence of Shri Krishan Murari, Sub-Registrar, Jansath, Muzaffarnagar District (U.P.), PW 3, who had deposed on commission after nearly two decades of the execution of the will throwing serious doubts on the credibility of the evidence tendered.
It is the submission of Mr Rana Mukherjee, learned counsel appearing for the appellant that the aforesaid suspicious circumstances had rendered the execution of the will highly suspect and, in addition, the execution thereof not having been proved as required under Section 69 of the Evidence Act, 1872, there is an apparent error in the conclusions recorded by the High Court in reversing the verdict of the learned trial court.
The arguments made on behalf of the appellant have been refuted by Shri Mahabir Singh, learned Senior Counsel appearing for the respondent, who has submitted that the above circumstances, by themselves, do not render the execution of the will suspect or unworthy of acceptance. Furthermore, it is submitted by the learned counsel that all the aforesaid allegedly suspicious circumstances are capable of being reasonably explained on the basis of the materials on record. It is further submitted that Shri Krishan Murari, Sub-Registrar, Jansath, Muzaffarnagar District (U.P.), PW 3, in his deposition on commission has proved the execution of the will by the attesting witnesses and the same being a registered document, the conclusions recorded by the High Court are perfectly justified and would not require any interference by this Court.
We have considered the rival submissions advanced on behalf of the parties.
The exclusion of the other children of the testator and the execution of the will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the testator that has to prevail.
Therefore, the question as to whether the will is a genuine and acceptable document will depend on a consideration of the other circumstances surrounding its execution.
While there is an obvious error in the will in the name of the daughter of the testator, there are two significant aspects of the matter which cannot be overlooked. Firstly, the will was written to the dictation of the testator, and secondly, in the description of the name of the daughter, there is a reference to her husband’s name which is correct i.e. Narayan Singh. The aforesaid two circumstances can reasonably explain the error in the name of the daughter as appearing in the will and we are persuaded to hold that the said error is not material so as to invalidate the will.
Insofar as the capacity of the testator to execute the will is concerned, though arguments have been advanced to show that on account of ill-health the testator was not in a position to realise and comprehend the consequences of his action, what cannot be overlooked is the fact that it is the admitted case of the respondent herein that at the time of the execution of the will, the testator was in Jansath in U.P. in connection with the treatment of his eye ailment. There is no material on record to hold that the testator was suffering from any other kind of physical or mental infirmity which had rendered him incapable of taking a decision with regard to bequeathing of the properties by means of the will in question.
It is not a fact that the will and its contents had come to light for the first time after 17 years when the application was filed before the learned trial court by the present respondent. From the materials on record before the High Court, it is evident that there was a family dispute between the parties which was resolved by the local Durbar and the proceedings thereof were recorded in Ext. 10. In the said document, there is a reference to the “deed of agreement” made by the deceased father in 1974 on the basis of which the appellant was found entitled to be in possession of the property in question. The aforesaid “deed of agreement” is, in fact, the will dated 20-11-1974.
The attesting witnesses having died, the Sub-Registrar, who had registered the will was examined as PW 3. He was examined on commission and in response to the questions posed to him, particularly, Question 2, he had set out the circumstances in which the attesting witnesses as well as the testator had signed on the document. This part of the evidence has been elaborately considered by the High Court to record its satisfaction that the execution of the will has been proved on the basis of the evidence of the Sub-Registrar i.e. PW 3. Having considered the aforesaid aspect of the matter, we are of the view that the satisfaction recorded by the High Court does not suffer from any apparent infirmity or fundamental error which would require correction in the exercise of our jurisdiction under Article 136 of the Constitution of India.
All the alleged suspicious circumstances surrounding the execution of the will being capable of being understood in the manner indicated above and the requirement of Section 69 of the Evidence Act, 1872 having been satisfied by the evidence of PW 3, we find that in the present case, the findings and conclusions recorded by the High Court would not call for any interference. Consequently, and for the reasons aforesaid, we dismiss the appeal leaving the parties to bear their own costs.
Relevant paragraphs: 9. Whether a Magistrate can issue summons to a person residing outside the territorial jurisdiction without conducting an enquiry under Section 202 of Cr.P.C., if so under what circumstances?
9.5 The procedure under Section 202 of Cr.P.C. is required to be followed only when the accused has no presence at all within the jurisdiction of the Court issuing process, which is not the case here.
HELD: 9.10.1 When the accused is having an office, branch office, corporate office, sales office or the like within the jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.
9.10.2 In the event of accused being an individual, if the said accused has a temporary residencewithinthe jurisdiction of the Magistrate, again merely because he does not have a permanentresidence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.
9.10.3When the accused has no presence within the jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C to be held.
9.10.4. In the event of accused being aggrieved by the issuance of summons, the said accused immediately on receipt of the summons and/or on appearance before the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followedon account of delay and latches.
Relevant paragraphs: 14.This Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified.
A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory AIR 1965 SC 1803 held that “11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.
The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens within the judicial decision of a Labour Court or Tribunal.
15 & 19. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. In view of the aforesaid discussion, we allow the present Appeal, and set aside the Judgment of the High Court. The Award dated 22.8.2016 is restored.
Relevant paragraphs: 12. Point (v). Can a tenant or a licencee of the property contend that the liability of obtaining permission from the respective Pollution Control Board would be that of the owner and the tenant/licensee has nothing to do with it?
12.1 to 12.6 Neither the Air Act nor the Water Act makes any distinction between the owner and/or a tenant of a industry, factory or premises. The Act only refers to and applies itself to pollution being caused. Unless there is a contract to the contrary that an owner of the premises is to obtain permissions under the relevant pollution control Act, it would be for the alleged polluter to obtain necessary permissions and/or consent under the Air Act or Water Act. Section 21 of Act also does not make a distinction between the owner and/or a tenant insofar as it states “…. No person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. ….”. Thus, the allegation in the present case being that the Petitioner has caused pollution and/or the Petitioner is operating the iron ore stackyard, it was for the Petitioner to obtain the necessary permission and/or consent from the jurisdictional Pollution Control Board.
12.7 From the reading of the above, it is seen that as per Condition No.8, the said Dream Logistics Company was required to obtain consent from KSPCB under Water Act and Air Act before the commencement of any activities as also to comply with several conditions as extracted above. Irrespective of whether the petitioner is an owner or a tenant or whether the land is owned by port authorities or otherwise, even at the time of allotment, it was made clear that it was for the petitioner to obtain consent from KSPCB. In the said background, it cannot now lie for the petitioner to contend that the consent was to be obtained by the port authorities. Be that as it may. This could also be a subject matter of trial. If at all, the port authorities are also liable, they can also be brought on record as additional accused in terms of Section 41 of the Air Act. Governmental authorities who violate Environmental Protection Act including the Air Act, Water Act could be liable for prosecution for such offences, the concerned persons who were incharge of such government department at that point of time can always be prosecuted.
12.8 1.1. In view of the above, I answer Point No.(v) by holding that a tenant or a licensee of a property or anyone who operates any industrial plant or trade activity in the air pollution control area would have to obtain the necessary consent and/or permission from the jurisdiction Pollution Control Board unless there is a contract to the contrary between such tenant and owner of the premises or a licensee and licensor of the premises, requiring the Owner or Licensor to obtain such consent and/or permission.
NOTE: The Karnataka High Court applies the principle of “Ecocide” in a case involving Air and Water pollution by trader who stacked iron ore in open place causing Air and Water pollution. Ecocide is criminalized human activity that violates the principles of environmental justice, as by substantially damaging or destroying ecosystems or by harming the health and well-being of a species. Though Ecocide has not yet been accepted as an internationally punishable crime by the United Nations, the municipal laws worldwide have made destruction of the environment, fauna and flora as punishable offences. In India, the Water (Prevention and Control of Pollution) Act- 1974 and the Air (Prevention and Control of Pollution) Act- 1981 have occupied the filed.
M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.
Relevant paragraphs: 10.11 In the present case, the Petitioner is stated to have dumped iron ore in the area allocated to it in an open space. Iron ore as a term would indicate is the mineral iron ore contained in soil, which needs to be extracted therefrom. Thus, in a sense what is dumped in port area is soil containing iron ore. Once the soil dries up, there is a great possibility of dry soil being blown away by the air spreading the dry soil along with iron ore in and around the area of port. If not for the Petitioner having used the area for dumping of the iron ore, no pollution could have occurred. Whether it occurred or not is a subject matter of trial? However, the allegation as regards occurrence of the air pollution on the basis of the iron ore being dumped by the Petitioner in the allocated area is something which requires investigation and if found to be true and correct, the same would require the Petitioner to stand trial.
10.15 The fact that the allocated area is a port area, there are villages around the area also ocean beside the area would also be of considerable importance. Since apart from dry iron ore being blown away by the wind, in the event of rains occurring, the water which mixes with the said iron ore could seep into the ground, polluting the groundwater and mixing with the ocean nearby, which would cause environmental damages to the habitat as also adversely affecting the fishes and other living creatures in the ocean. If there is large scale pollution of this kind, it could also result in an ecological disaster causing untold harm and misery to human beings and the environment, even resulting in large scale death of aquatic life.
10.16 Encyclopedia Britannica defines Genocide as “the deliberate and systematic destruction of a group of people because of their ethnicity, nationality, religion, or race. The term, derived from the Greek genos (“race,” “tribe,” or “nation”) and the Latin cide (“killing”), was coined by Raphael Lemkin, a Polish-born jurist who served as an adviser to the U.S. Department of War during World War II.”
10.17 The United Nations Office on Genocide prevention gives the background of Genocide asunder:The word “genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction ofparticular groups of people. Later on, Raphäel Lemkin led the campaign to have Genocide recognised and codified as an international crime.
10.18 In my opinion, the large scale destruction of environment and habitat of animals is no less than the offence of Genocide, since it is the destruction of the environment, the offence would qualify to be “Ecocide”, which would amount to causing the death and destruction of the environment and other living creatures. It is time that this aspect is recognised and due action thereon taken in our country, like that taken in other countries.
10.19 Dictionary.com defines ecocide as: “the destruction of large areas of the natural environment by such activity as nuclear warfare, overexploitation of resources, or dumping of harmful chemicals.”
10.20 Merrium Webster defines ecocide as: “the destruction of large areas of the natural environment as a consequence of human activity”.
10.21 It is now absolutely required for the preservation of human life as we now know it, to preserve the environment and nature. It is only by preservation of the environment and nature that mankind can be preserved. There is an absolute and imperative need for all to adopt sustainable living and development. Man must not only sustain himself but also sustain nature, which sustains him.
10.22 In view thereof, the Pollution Control Authorities are required to be ever vigilant to avoid, if possible, the occurrence, if not, when it occurs to stop such pollution, by taking necessary steps immediately. Thereafter to initiate necessary action by following due procedure of law to punish the guilty so that the same has a deterrent effect as against future violators. The principle of “Polluter Pays” would also be applicable to take restorative action for such pollution or environmental destruction caused.
Relevant paragraphs: 17. Insofar as the contention of the respondents that the petitioner is estopped from challenging the selection process after having participated on the ground of acquiescence is concerned, the said principle is not a panacea to all the ills and illegalities committed by the Selecting Authorities. It is noticed that the Selecting Authorities time and again commit glaring illegalities in selections contrary to the statute, appoint candidates contrary to law and try to take shelter under the plea of estoppel against the candidates who challenge the act of the Selecting Authorities and consequent appointments, on a specious plea that the candidate cannot turn around and challenge the selection process or procedure stipulated for selection, after having participated in the selection process. The same plea is advanced in unison by the respondent – University and the selected candidate. The plea of the said respondents is unacceptable to me.
18. The University has made selections blatantly contrary to Rule 6 of the Special Rules which has resulted in the appointment of respondent No.7 to the post of Assistant Professor in the Department of English and denial of the entitlement of the petitioner to be considered for such appointment. The petitioner has not questioned the notification, process of selection or procedure adopted, but has questioned the selection of respondent No.7 as contrary to law. Such a challenge can be made only after the outcome of the selection process for which the candidate should partake in the said selection process. This view of mine, in this regard, is fortified by judgments of the Apex Court in the case of Raj Kumar vs shakri raj reported in (1997) 9 SCC 527.….But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method ofselection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case.
19. The Apex Court in the latest judgment, in the case of Dr.(Major) Meeta Sahai Vs. Union of India reported in (2019) 20 SCC 17, considering the entire case law in point has held as follows:,,,,,,However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurableillegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
If the facts obtaining in the case at hand is considered in the light of law laid down by the Apex Court in the afore-extracted judgment, the petition cannot be shown the doors of the Court for an exit, merely because the petitioner has participated in the selection process as it is only the outcome of selection that has brought out the illegality committed by the University in selecting respondent No.7 contrary to the Special Rules.
21. Thus, in terms of the afore-extracted judgment of the Apex Court considering all the judgments on the issue of estoppel, acquiescence and waiver as in the case of Dr.(Major) Meeta Sahai (supra) held that illegality in a selection process can be found by a candidate only on its participation and not otherwise.
Relevant portion page 23: The claim of adverse possession requires fulfillment of the three criteria concurrently which are:- (a) nec vi – adverse in continuity (b) nec clam – adverse in publicity (c) nec precario – adverse to a competitor in denial of title and to his knowledge.
The claim of adverse possession cannot run concurrently with acceptance of title. The judgment of Apex Court in the case of Karnataka Board of Wakf v. Government of India and Others (2004) 10 SCC 779 as regards this aspect further sheds light and the following extract need be noticed.
“12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M.Karim v. Bibi Sakina [AIR 1964 SC 1254].) In P. Periasami v. P. Periathambi [(1995) 6 SCC 523] this Court ruled that: (SCC p.527, para 5) “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
Another aspect that needs to be noticed is that mere possession without the requisite animus would not turn possession into possession which is adverse. In fact, as regards to the construing of “intention to dispossess” in the case of Powell v. McFarlane and Another 1979 (38) P. & C.R. 452, it was observed as follows:-
“(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”)
“…..If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”
The right of the plaintiff to sue for possession would remain till the defendant acquires positive title by adverse possession so as to extinguish the plaintiff’s right, which alone would result in extinguishment of plaintiff’s right under Section 27 of the Limitation Act.
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