Relevant paragraphs: 15.15. …, once the land has been gifted under Bhoodan and Vidyadan scheme, there is no right which is created in the donor or the legal representatives of donor to seek for return of the lands gifted for any reason whatsoever. Once the land is gifted to the Government, it is the responsibility of the Government to put the land to the use for which it was granted by way of a gift. At the most, the donor or the legal representatives of the donor can seek for a direction to direct the Governmental authorities to put the land to use for which it was so gifted, they cannot seek for return of the land granted by way of a gift since the gift is complete on the gift deed being executed, there cannot be return of the land.
15.17. The Resumption of the land being not capable of being done on account of Karnataka Bhoodan Yagna (Repeal) Act, 1962, it cannot be now contended by the petitioner that the land is required to be resumed.
26. The issue raised before this Court, when considered in the backdrop of the Constitutional provisions, the words of the Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others (2012) 4 SCC 407 could be quoted with authority. It was held that the amendment in the Constitution by adding parts IX and IXA confers upon the local self-Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic setup of this country. The democratic setup of the country has always been recognized as a basic feature of the Constitution, like other features eg., supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review etc. It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive or its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State.
Relevant paragraphs. 7. Sri.Kethan Kumar, learned counsel or the petitioners would submit that the petitioners are but fishermen, who unfortunately due to act of nature were stuck on the high seas due to a cyclone, the diesel of their Vessel got depleted and finally drifted into maritime zone of India. There is no allegation against the petitioners as regards any other offences nor have they involved themselves in any particular offences. Merely because they came into the maritime zone, they have been in custody for more than fourteen months, as such, he submits that there being no offences which are made out against the petitioners, the proceedings are required to be quashed and they are to be deported back to their country of origin.
11. The facts are not in dispute. The only issue is as to whether at this stage it can be said from the material on record that the petitioners have committed any particular offence requiring their detention and/or prosecution ?
12. Merely because during the course of fishing, due to unforeseen circumstances and acts of nature if their Vessels were to drift into the maritime Zone of a particular country, it cannot strict sensu be said that there is any offence made out against them requiring their incarceration and/or criminal trial.
13. These are common occurrences which happen to all fishermen fishing in the international waters. Many a times it is seen that fishermen of our country have drifted into maritime zone of another country and sometimes action is taken against them and sometimes no action is taken against them. This being so, for the reason that unless there is a willful intent or motive associated with such act and/or any intent to commit any other offence, fishermen per se ought not to be prosecuted for just drifting into a maritime zone of another country.
Relevant paragraphs: 10. Having heard both parties and perusing the material available on record, the question which needs to be answered is whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance?
17. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient.
20. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the ‘principle of unbreakability’. If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.
26. In view of the above reasoning, we are of the considered opinion that the High Court erred in utilizing its discretionary power available under Articles 226 and 227 of the Constitution herein.
Compiled by Sumana Chamarty, Advocate, Daksha Legal.
Kirti & Anr. Etc vs. Oriental Insurance Company Ltd. CIVIL APPEAL NOS.1920 of 2021, [Arising out of Special Leave Petition(C) Nos.1872829 of 2018] decided on 05/01/2021.
Relevant paragraphs:16. Returning to the question of how such notional income of a homemaker is to be calculated, there can be no fixed approach. It is to be understood that in such cases the attempt by the Court is to fix an approximate economic value for all the work that a homemaker does, impossible though that task may be. Courts must keep in mind the idea of awarding just compensation in such cases, looking to the facts and circumstances [See R.K. Malik v. Kiran Pal, (2009) 14 SCC 1].
19. However, it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the Court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value added by a homemaker for the purpose of granting monetary compensation.
20. Whichever method a Court ultimately chooses to value the activities of a homemaker, would ultimately depend on the facts and circumstances of the case. The Court needs to keep in mind its duty to award just compensation, neither assessing the same conservatively, nor so liberally as to make it a bounty to claimants [National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680; Kajal v. Jagdish Chand, (2020) 4 SCC 413].
25. When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth noting that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion [Hem Raj v. Oriental Insurance Company Limited, (2018) 15 SCC 654; Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688].
26. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers
b. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation’s international law obligations and our constitutional vision of social equality and ensuring dignity to all.
Compiled by Sumana Chamarty, Advocate, Daksha Legal
Relevant paragraphs: 32. In the case of ‘Alamgir Vs. State [NCT, DELHI]’ [supra] it is held by the Hon’ble Apex Court that ‘experts opinion must always received with great caution and perhaps none so with more caution than the opinion of the handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on experts opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. It would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence’.
38. In the case of ‘Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy [dead] through legal representatives and another’ [supra], relied upon by the respondent’s counsel it is once again held that the Court must be cautious while evaluating experts opinion, which is a weak type of evidence and not substantive in nature. It may not be safe to solely rely upon such evidence, and Court may seek independent and reliable corroboration in the facts of a given case, as a general rule of prudence.
23. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority.
25. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
27. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
28. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
29. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
Relevant paragraphs: Early law of gifts: – The early law of gifts is stated by Sanskrit writers somewhat curiously under the title “Resumption of gifts”, one of the eighteen titles of law. Narada says, “An anvahita deposit, yachita, a pledge, joint property, a deposit, a son, a wife, the whole property of one who has offspring, and what has been promised to another man; these have been declared by the spiritual guides to be inalienable by one in the worst plight even. What is left (of the property) after the expense of maintaining the family has been defrayed, may be given. But by giving away anything besides, a householder will incur censure”. According to Brihaspati, “Self- acquired property may be given away at pleasure by its owner”. In other countries, gifts try to clothe themselves with the semblance of a sale. Under Hindu Law, sales claimed protection by assuming the appearance of a gift. The Mitakshara says: “Since donation is praised, if sale must be made, it should be conducted, for the transfer of immovable property, in the form of a gift, delivering with it gold and water (to ratify the donation). Narada mentions sixteen kinds of invalid gifts which embrace a variety of circumstances such as want of capacity of the donor, either permanent or temporary, absence of real intention to make a gift, influence of fear, fraud, misrepresentation, or mistake, many of which would invalidate a gift in modern law.
It would be relevant to observe where property is absolutely at the disposal of its owner, he may give it away as freely as he may sell or mortgage it, subject to a certain extent to the claims of those who are entitled to be maintained by him. A Hindu whether governed by the Mitakshara or the Dayabhaga, can dispose of his separate or self-acquired property. So too, a woman can make a gift of her stridhana. A coparcener in a joint family governed by the Mitakshara law cannot make a gift of his coparcenary interest even in State where he can alienate it for value, except after a division in status. Where the property is not absolutely at the disposal of a person, a transaction can only be supported on the ground of necessity and as a general rule, a gift of it could never be valid. Exceptions, however, are recognized by Hindu law where gifts can be made either for pious, religious or charitable purposes or on occassions, when, according to the common notions of Hindu, gifts are usually made. This exceptional power can only be exercised properly and within reasonable limits.
The modern law of gifts consists in part of case law and in part of the provisions of Chapters II and VII of the Transfer of Property Act, 1882. Even in the areas where the provisions of the Transfer of Property Act are not applicable, its principles apart from the technical rules are applied as rules of justice and equity.
There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary is void. It is not necessary to refer to all the decisions. Instead, I may refer to the following statement of law in Mayne’s Hindu Law, sixteenth edition., para 406: It is now equally well settled in all the states that a gift or devise by a coparcener in a Mithakshara family of his undivided interest is wholly invalid… A coparcener cannot make a gift of his undivided interest in the family property, movable, either to a stranger or to a relative except for purposes warranted by special texts.…According toMithakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make agift of his undivided interest with the consent of other coparceners.
An individual member of the Joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
I am of the opinion that the law is thus well settled that the manager has not absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. The scope of the power cannot be extended on the basis of the wide interpretation given to the words “pious purposes” in Hindu Law in a different context. Therefore, a gift to a stranger or relative of a joint family out of love and affection by the manager of the family is void.
Constitutionalism 168. The principle of constitutionalism has been deployed by the petitioners to justify the alteration of aforesaid standards. The ideal of constitutionalism finds place in almost every constitutional discourse involving the state and the citizen and we need to reflect upon this ideal in the context in which it appears. “Constitutionalism”, as an expression of political theory, holds the distinction of receiving diverse meanings and unlike most other concepts, the meanings are fundamentally distinct and inexplicable beyond the specific context in which they are used. The need for understanding this principle in its correct terminology gets multiplied in a country with a written Constitution. What, then, is the role of the principle of constitutionalism for a Court of law performing functions under the umbrella of a written Constitution?
169. A peculiar feature of the usage of this expression in constitutional matters is that one side tries to project it as an independent substantive rule, as opposed to it being a mere force behind the rule, and the other side brushes it down as a redundant theoretical concept. We must note that the true import of constitutionalism cannot be understood by treating it as a standalone concept of judicial application. Jurists across the world have given different meanings to this word. Whereas some have associated it with fundamental concepts of Rule of Law and judicial review as envisaged in the Constitution, others have considered it as a radical idea for transforming the Constitution over and above its true import. For some, judicial supremacy over functioning of executive and legislature is considered as essential to constitutionalism. For others, like Prof. Barendt275, the ideal of separation of powers is the essence of constitutionalism. Building upon the subjectivity of this concept, Jo Eric Khushal Murkens, in “The Quest for Constitutionalism in UK Public Law Discourse” notes that the substantive content of any constitutional discourse is not likely to change due to this principle thus:
“… Every scholar above is able to convey her message (the substantive concept of the rule of law, the legitimacy of government action, and the core institutional values) without requiring recourse to constitutionalism. In other words, if constitutionalism were eliminated from constitutional discourses, their substantive content would remain unchanged.”
170.Constitutionalism, therefore, is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged. It is a tool which is used to reach upto the ultimate goal of constitutionalization of governance and it cannot be deployed to present an alternative model of governance. We must state that it would not only be absurd but also fraught with dangers of overreach and ambiguity if subjective principles of interpretation are applied by detaching them from the textual scheme of the Constitution, particularly when the textual scheme lays down an elaborate structure of administration. For, to do so would be to drag a duly elected Government on the edges as it would be under a constant fear of being adjudged wrong on the basis of undefined principles which appeal to “three gentlemen or five gentlemen sitting as a Court”. And what will suffer is public interest in the form of public exchequer including sovereignty of the nation.
171. In this regard, we must recall the enunciation of this Court in Keshavan Madhava Menon277, wherein it is observed that an argument on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiments and emotion; but a Court of law has to gather the spirit of the Constitution from the language of the Constitution. For, one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.
172. To conclude, the principle of constitutionalism is a work in progress which is meant to infuse life and blood into an existing scheme which has stood the test of constitutional validity and not to nudge with the scheme itself. It may only be deployed to evolve minimum standards of procedures prescribed by law. It is not to undermine or supplant the elaborate statutory regulatory schemes.
Compiled by S. Basavaraj, Advocate, Dakshsa Legal.
Daksha Legal 