Relevant paragraphs: Facts: Whilst Execution Case is being processed, some initial steps having been taken for levying enforcement of the award in question, learned Judge has employed some arguably intemperate language in his orders reflecting on the professional conduct of learned counsel for the petitioners who is a senior member having a considerable standing at the Bar; therefore, petitioners are knocking at the doors of the writ court seeking expunction of the said “adverse observations”.
5. Reproducing the text of the said three orders may not be advisable. Suffice it to say that, judges should not be too sensitive in the conduct of court proceedings or to the comments of the onlookers; in any circumstance, they are not expected to ink their orders with a pen dipped in acid either; cause of judicial process is served more by restraint of unpleasant expressions than otherwise; if the court orders are constructed with avoidably pungent words, the stream of justice runs the risk of being tainted as ‘impure’.
“In its widest sense, advocacy is the art of convincing others, that is to say, the art of persuasion … In its legal context, advocacy is the art of conducting cases in court, both by argument and by the manner of bringing out the evidence, so as to convince the court or jury …For members of the bar, who make a practice of appearing in court, advocacy is of first importance and ranks at any rate on an equal level with a knowledge of the law…” writes John Munkman in “The Technique of Advocacy”, LexixNexis Butterworks, London, 1991 Edn.; at times persons associated with adjudicatory process exhibit more emotion than what is normal, for inscrutable reasons; perhaps ‘chimp’ hidden in humans needs no instigation to act and therefore has to be handled tactfully; prudence warrants that all stakeholders in adjudication relegate their emotions to the backseat so that the purity of judicial process is maintained; more is not necessary to elaborate.
7. It hardly needs to be reiterated that the Bar and the Bench being two inseparable wheels of the same chariot, have to move shoulder by shoulder, each being complementary and supportive to the other, the ‘bar’ in between, notwithstanding; even if the submissions of the counsel are, at times, not couched in a pleasant language, a judge is expected not to loose his cool in his expression, be it oral or in writing; efficacy of the orders can be maintained sans acidity in the language employed.
8. The language used in the subject orders though accords with the common usage, falls a little short of the high standards fixed by the judicial traditions; the tenor of the said orders appears to cast aspersion on the professional conduct of the counsel and therefore needs to be toned down, consistent with the majesty of the Institution of Judiciary. In view of the above, although impugned orders are sustained in terms of their effect & efficacy, there being no challenge thereto, the text by which they are structured shall be read down and the observations therein casting aspersion on the professional conduct of the counsel for the petitioners, shall be treated as having been expunged from the record. It hardly needs to be stated that nothing in this judgment shall be construed as suggesting even remotely anything adverse against the learned Judge of the court below or the counsel for the petitioners.
Relevant paragraphs: Facts: Whilst Execution Case is being processed, some initial steps having been taken for levying enforcement of the award in question, learned Judge has employed some arguably intemperate language in his orders reflecting on the professional conduct of learned counsel for the petitioners who is a senior member having a considerable standing at the Bar; therefore, petitioners are knocking at the doors of the writ court seeking expunction of the said “adverse observations”.
5. Reproducing the text of the said three orders may not be advisable. Suffice it to say that, judges should not be too sensitive in the conduct of court proceedings or to the comments of the onlookers; in any circumstance, they are not expected to ink their orders with a pen dipped in acid either; cause of judicial process is served more by restraint of unpleasant expressions than otherwise; if the court orders are constructed with avoidably pungent words, the stream of justice runs the risk of being tainted as ‘impure’.
“In its widest sense, advocacy is the art of convincing others, that is to say, the art of persuasion … In its legal context, advocacy is the art of conducting cases in court, both by argument and by the manner of bringing out the evidence, so as to convince the court or jury …For members of the bar, who make a practice of appearing in court, advocacy is of first importance and ranks at any rate on an equal level with a knowledge of the law…” writes John Munkman in “The Technique of Advocacy”, LexixNexis Butterworks, London, 1991 Edn.; at times persons associated with adjudicatory process exhibit more emotion than what is normal, for inscrutable reasons; perhaps ‘chimp’ hidden in humans needs no instigation to act and therefore has to be handled tactfully; prudence warrants that all stakeholders in adjudication relegate their emotions to the backseat so that the purity of judicial process is maintained; more is not necessary to elaborate.
7. It hardly needs to be reiterated that the Bar and the Bench being two inseparable wheels of the same chariot, have to move shoulder by shoulder, each being complementary and supportive to the other, the ‘bar’ in between, notwithstanding; even if the submissions of the counsel are, at times, not couched in a pleasant language, a judge is expected not to loose his cool in his expression, be it oral or in writing; efficacy of the orders can be maintained sans acidity in the language employed.
8. The language used in the subject orders though accords with the common usage, falls a little short of the high standards fixed by the judicial traditions; the tenor of the said orders appears to cast aspersion on the professional conduct of the counsel and therefore needs to be toned down, consistent with the majesty of the Institution of Judiciary. In view of the above, although impugned orders are sustained in terms of their effect & efficacy, there being no challenge thereto, the text by which they are structured shall be read down and the observations therein casting aspersion on the professional conduct of the counsel for the petitioners, shall be treated as having been expunged from the record. It hardly needs to be stated that nothing in this judgment shall be construed as suggesting even remotely anything adverse against the learned Judge of the court below or the counsel for the petitioners.
Relevant paragraphs:“Half the world; and not even half the chance” is the cry of the petitioner in this petition on being denied consideration for appointment on compassionate ground on the death of her father on the score that she is “a married daughter”.
9. “Whether Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 are ultravires the Constitution for it offends Article 14 of the Constitution of India?”
10. It is by now a well settled principle that object of compassionate appointment is to help the family tied over the crisis that befalls them on the death of the sole breadwinner of the family. It is given, in a given circumstance, so that the family will not be put to jeopardy by being driven to impecuniosities and condemned by penury. It is for this reason the emphasis on appointment on compassionate grounds is immediacy of appointment. This is the principle that is laid down in plethora of judgments of the Apex Court interpreting the need, benefit and its limitations.
12.1 & 12.2 Article 14 of the Constitution of India prohibits the State from denying any person equality before the law or equal protection of the laws. Article 16 is of application of general Rule of equality as laid down in Article 14 with special reference to opportunity for appointment and employment under the State. Article 15(1) prohibits discrimination on the ground of religion, race, caste, sex or place of birth. It is an extension of Article 14, which expresses application of principle of equality. Therefore, no citizen shall be discriminated on the grounds of race, caste, sex or place of birth religion. Article 16 takes its root from Article 14 and ensures equality of opportunity in matters of employment under the State. Therefore, the fundamental right to equality means that persons in like situations under like circumstances should be treated alike. Article 14 of the Constitution of India ensures equality among equals and its main object is to protect persons similarly placed against discriminatory treatment. The equality before law guaranteed under Articles 14, 15 and 16 is a constitutional admonition against both the legislative and executive organs of the State, neither the legislature nor the Rule making authority can make a law or a Rule which is violative of these articles.
12.3 The case of the petitioner and the issue raising a challenge to the constitutional validity of the provision relating to appointment on compassionate grounds will have to be tested on the bedrock of the purport of the aforesaid articles.
14.5 It is trite that Constitution and its interpretation grows according to the living needs of the citizens. It is dynamic and not static. The interpretation of law has always undergone a change with changing times. If the offending provision is left as it is, it would be putting the clock back from where the law has progressed over the years.
14.6 The case at hand is a classic example of law being anachronistic as in terms of the Rules, petitioner applies for compassionate appointment when the son declines the same on the ground that he is not interested. The Rule gives such a liberty to the son to even deny the benefit on the ground that he is not interested. The son of the deceased employee in the case at hand declines to accept appointment on the ground that he is not interested. The daughter is denied on the score that she is married. Therefore, the Rule which declines such a benefit to a daughter merely on the ground that she is married is per se discriminatory.
HELD: Exclusion of married daughters from the ambit of expression ‘family’ in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 is illegal and unconstitutional being violative of Articles 14 and 15 of the Constitution.Word “unmarried” in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 is struck down.
The High Court of Karnataka, (Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda), while quashing Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian’ quotes Sanskrit Shloka ‘Vasudaiva Kutumbakam’ i.e. world is one family.
The original verse appears in Chapter 6 of Maha Upanishad. Also found in the Rig Veda, it is considered the most important moral value in the Indian society.This verse of is engraved in the entrance hall of the Parliament of India.
See case details below.
Pranav Bajpe and others vs The State of Karnataka and others. Writ Petition 27761/2019 and connected matters decided on 9 December 2020.
Relevant paragraphs: Challenge is to Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 made under The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 insofar as it inserts the words ‘and includes persons of Indian origin and overseas citizen of India’ in the definition of “Non-resident Indian” as being repugnant to the provisions of the Citizenship Act, 1955.
16. Single Judge (Justice Krishna Dixit) conclusions:
(i) On the question whether the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act is repugnant to 2009 Notification of Central Government, learned Single Judge considered the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act in light of Central Government Notification dated 05/01/2009 and the earlier Notification dated 11/04/2005 and held that a OCI Cardholder cannot be equated to a Non-Resident Indian in the matter of admission to professional colleges by an interpretation of the aforesaid two Notifications.
(ii) On the question whether impugned Section 2(1)(n) of 2006 Act is unconstitutional because of lack of legislative competence of the State Legislature, the learned Single Judge analysed Section 7A and 7B of the Citizenship Act and held that the he Notification of 2005 and 2009 impugned Section 2(1)(n) and 2(1)(l) of 2006 Act and Rule 5 of 2006 Rules and therefore were not enforceable.
(iii) Section 7B(1) of Citizenship Act deals with OCI card holders who are not citizens of India. That Section 7B(1) of the Citizenship Act delegates power for issuance of Notifications granting rights to OCI card holders. That the said legislation is traceable to Entry-17 of List-I of VII Schedule of the Constitution which deals with “Citizenship, Naturalization and Aliens”. Therefore, on the strength of the said entry in List-I, the Central Government is empowered to grant various rights to OCI card holders including educational rights. When such rights are granted in the matter of education to OCI card holders, the State Legislature has no competence to legislate on the specific educational rights granted by the Central Government by a Notification issued under Section 7B of Citizenship Act. Therefore, any amendment made to the Karnataka Act and Rules restricting the rights granted to the OCI card holders in the matter of education would be repugnant as the doctrine of ‘occupied field’ would apply under Article 254 of the Constitution.
(iv) On the question whether Rule 5 of 2006 Rules prescribing ‘citizenship’ as a condition for availing Government seats is unenforceable against OCI card holder is concerned, the learned Single Judge referred to Rule 5 of 2006 Rules which prescribes that Indian Citizenship is a sine qua non for any student to lay claim for ‘Government Seats’ which is defined under Rule 2(1)(l) of 2006 Rules, would mean that the rights granted under 2009 Notification under Section 7B(1) of the Citizenship Act would be defeated.
(v) Also, the rights that are available under 2005 Notification and further under 2009 Notification issued by the Central Government under Section 7B(1) of Citizenship Act cannot be diminished or nullified by Rule 5 of the 2006 Rules. There is repugnance between Rule 5 of 2006 Rules with the Notifications of 2005 and 2009. Therefore, Rule 5 cannot be enforced against OCI cardholders, that it can be enforced against other foreigners who are not in any case, the petitioners. This is because Rule 5 of 2006 Rules is relatable to Entry 25 of List-III which deals with the subject-education which is in the Concurrent List and the principles of repugnancy under Article 254 of the Constitution would apply.
(vi) On the question whether the OCI cardholders are Indian citizens, learned Single Judge held that they are all ‘foreigners’, to mean a person who is not a citizen of India, as per the definition under Section 2(a) of the Foreigners Act, 1946.
(vii) On the stand of the Central Government as to educational rights to OCI cardholders, reference was made to memo dated 18/03/2019, submitted on behalf of the Central Government and learned Single Judge observed that the said clarification is in conflict with the interpretation of Notification of 2005 and 2009. That on the one hand, the Notification of Central Government granting educational rights to OCI cardholders and the conference of such rights, cannot be made illusory by the State enactment or Rule. The State law cannot take away the rights granted by the Central Government to the OCI cardholders under Section 7B of the Citizenship Act through the Notification of 2005 and 2009. According to the learned Single Judge, the expression “in pursuance of the provisions contained in the relevant Acts” in paragraph “b” of the 2009 Notification cannot be construed to mean State law which has the effect of curtailing the effect of the rights granted to the OCI cardholders by the Central Government.
49. The Notifications issued by the Central Government under Section 7B of the Citizenship Act, is a statute enacted by the Parliament, while the State law is under Entry 25 of List III of the Concurrent List, which deals on the subject ‘education’.
60. In view of the aforesaid discussion, the expression “citizen” in Rule 5 of 2006 Rules and the expression “Non-Resident Indian” to include OCI cardholders under 2006 Act, both of the State Government, in juxtaposition with Central Government Notifications of 11/04/2005 and 05/01/2009 in the matter of eligibility of OCI cardholders to appear for All-India Pre- Medical Test and to make them eligible for admission in pursuance of the provisions contained in relevant Acts (State Acts) i.e., Medical, Dental, Engineering and such other courses, would have to be considered.
71. …The petitioners in the instant case are all OCI Cardholders who were minors at the time of filing the petitions. Such of those minor OCI Cardholders who are born subsequent to 10/12/1992 to either of whose parents who was a citizen of India at the time of their birth, are conferred citizenship of India by descent. This is evident on a reading of Section 4(1)(b) read with Section 4(1A) of the Citizenship Act, as a minor who is a citizen of India by virtue of Section 4(1)(b) by descent and is also a citizen of any other country, such as OCI Cardholder as per Section 7A(1)(c), shall cease to be a citizen of India if he either renounces his citizenship on attaining full age or even if he does not renounce his citizenship or nationality of another country within six months of attaining the full age. Therefore, the status of minor children of citizens of India is protected by an amendment made to Section 4 of the Citizenship Act by insertion of Section 4(1A).
HELD: (i) …Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian” is quashed;
(ii) The impugned Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006, to the extent it prescribes Indian Citizenship, is interpreted so as to include within the scope of the expression ‘Citizen’,OCI Cardholders as per Section 4 of the Citizenship Act and as per Notification dated 05/01/2009 issued under Section 7B of the said Act;
(iii) The writ of Mandamus issued by the learned Single Judge directing the Respondent-State and the Respondent-Karnataka Examinations Authority to permit the petitioners (as per their choice) to register for CET-2019 as per the Notification dated 31/01/2019 issued by the Respondent-Karnataka Examinations Authority is confirmed. Further, the aforesaid Authority is directed to permit their participation in the ensuing counseling of CET- 2020 or subsequent years, for selection and allotment of seats in BE/B.Tech/B.Arch., or such other professional courses in Government Colleges, Private Aided/Un-aided Colleges/ educational institutions for the Academic Year 2019-2020 on the basis of their relative merit and ranking in the imminent CET-2020 or subsequent years;
(iv)Insofar as MBBS/BDS courses are concerned, NEET Scheme shall apply for the Academic Years 2019- 20 as well as 2020-21 and a writ of mandamus is issued directing the respondent-State and respondent-Karnataka Examinations Authority to permit the petitioners and similarly situate candidates i.e., OCI Cardholders to register and to participate in the ensuing counseling being held for selection and allotment of seats for the Academic Year 2020-21 and subsequent years, on the basis of their relative merit and ranking;
(v) The Respondent-Government and the Respondent- Karnataka Examinations Authority shall take all steps as are necessary to facilitate and effectuate the aforesaid directions, forthwith and without brooking any delay in the matter, keeping in view CET-2020 or subsequent years.
Relevant paragraphs: Challenge is to Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 made under The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 insofar as it inserts the words ‘and includes persons of Indian origin and overseas citizen of India’ in the definition of “Non-resident Indian” as being repugnant to the provisions of the Citizenship Act, 1955.
16. Single Judge (Justice Krishna Dixit) conclusions:
(i) On the question whether the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act is repugnant to 2009 Notification of Central Government, learned Single Judge considered the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act in light of Central Government Notification dated 05/01/2009 and the earlier Notification dated 11/04/2005 and held that a OCI Cardholder cannot be equated to a Non-Resident Indian in the matter of admission to professional colleges by an interpretation of the aforesaid two Notifications.
(ii) On the question whether impugned Section 2(1)(n) of 2006 Act is unconstitutional because of lack of legislative competence of the State Legislature, the learned Single Judge analysed Section 7A and 7B of the Citizenship Act and held that the he Notification of 2005 and 2009 impugned Section 2(1)(n) and 2(1)(l) of 2006 Act and Rule 5 of 2006 Rules and therefore were not enforceable.
(iii) Section 7B(1) of Citizenship Act deals with OCI card holders who are not citizens of India. That Section 7B(1) of the Citizenship Act delegates power for issuance of Notifications granting rights to OCI card holders. That the said legislation is traceable to Entry-17 of List-I of VII Schedule of the Constitution which deals with “Citizenship, Naturalization and Aliens”. Therefore, on the strength of the said entry in List-I, the Central Government is empowered to grant various rights to OCI card holders including educational rights. When such rights are granted in the matter of education to OCI card holders, the State Legislature has no competence to legislate on the specific educational rights granted by the Central Government by a Notification issued under Section 7B of Citizenship Act. Therefore, any amendment made to the Karnataka Act and Rules restricting the rights granted to the OCI card holders in the matter of education would be repugnant as the doctrine of ‘occupied field’ would apply under Article 254 of the Constitution.
(iv) On the question whether Rule 5 of 2006 Rules prescribing ‘citizenship’ as a condition for availing Government seats is unenforceable against OCI card holder is concerned, the learned Single Judge referred to Rule 5 of 2006 Rules which prescribes that Indian Citizenship is a sine qua non for any student to lay claim for ‘Government Seats’ which is defined under Rule 2(1)(l) of 2006 Rules, would mean that the rights granted under 2009 Notification under Section 7B(1) of the Citizenship Act would be defeated.
(v) Also, the rights that are available under 2005 Notification and further under 2009 Notification issued by the Central Government under Section 7B(1) of Citizenship Act cannot be diminished or nullified by Rule 5 of the 2006 Rules. There is repugnance between Rule 5 of 2006 Rules with the Notifications of 2005 and 2009. Therefore, Rule 5 cannot be enforced against OCI cardholders, that it can be enforced against other foreigners who are not in any case, the petitioners. This is because Rule 5 of 2006 Rules is relatable to Entry 25 of List-III which deals with the subject-education which is in the Concurrent List and the principles of repugnancy under Article 254 of the Constitution would apply.
(vi) On the question whether the OCI cardholders are Indian citizens, learned Single Judge held that they are all ‘foreigners’, to mean a person who is not a citizen of India, as per the definition under Section 2(a) of the Foreigners Act, 1946.
(vii) On the stand of the Central Government as to educational rights to OCI cardholders, reference was made to memo dated 18/03/2019, submitted on behalf of the Central Government and learned Single Judge observed that the said clarification is in conflict with the interpretation of Notification of 2005 and 2009. That on the one hand, the Notification of Central Government granting educational rights to OCI cardholders and the conference of such rights, cannot be made illusory by the State enactment or Rule. The State law cannot take away the rights granted by the Central Government to the OCI cardholders under Section 7B of the Citizenship Act through the Notification of 2005 and 2009. According to the learned Single Judge, the expression “in pursuance of the provisions contained in the relevant Acts” in paragraph “b” of the 2009 Notification cannot be construed to mean State law which has the effect of curtailing the effect of the rights granted to the OCI cardholders by the Central Government.
49. The Notifications issued by the Central Government under Section 7B of the Citizenship Act, is a statute enacted by the Parliament, while the State law is under Entry 25 of List III of the Concurrent List, which deals on the subject ‘education’.
60. In view of the aforesaid discussion, the expression “citizen” in Rule 5 of 2006 Rules and the expression “Non-Resident Indian” to include OCI cardholders under 2006 Act, both of the State Government, in juxtaposition with Central Government Notifications of 11/04/2005 and 05/01/2009 in the matter of eligibility of OCI cardholders to appear for All-India Pre- Medical Test and to make them eligible for admission in pursuance of the provisions contained in relevant Acts (State Acts) i.e., Medical, Dental, Engineering and such other courses, would have to be considered.
71. …The petitioners in the instant case are all OCI Cardholders who were minors at the time of filing the petitions. Such of those minor OCI Cardholders who are born subsequent to 10/12/1992 to either of whose parents who was a citizen of India at the time of their birth, are conferred citizenship of India by descent. This is evident on a reading of Section 4(1)(b) read with Section 4(1A) of the Citizenship Act, as a minor who is a citizen of India by virtue of Section 4(1)(b) by descent and is also a citizen of any other country, such as OCI Cardholder as per Section 7A(1)(c), shall cease to be a citizen of India if he either renounces his citizenship on attaining full age or even if he does not renounce his citizenship or nationality of another country within six months of attaining the full age. Therefore, the status of minor children of citizens of India is protected by an amendment made to Section 4 of the Citizenship Act by insertion of Section 4(1A).
HELD: (i) …Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian” is quashed;
(ii) The impugned Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006, to the extent it prescribes Indian Citizenship, is interpreted so as to include within the scope of the expression ‘Citizen’,OCI Cardholders as per Section 4 of the Citizenship Act and as per Notification dated 05/01/2009 issued under Section 7B of the said Act;
(iii) The writ of Mandamus issued by the learned Single Judge directing the Respondent-State and the Respondent-Karnataka Examinations Authority to permit the petitioners (as per their choice) to register for CET-2019 as per the Notification dated 31/01/2019 issued by the Respondent-Karnataka Examinations Authority is confirmed. Further, the aforesaid Authority is directed to permit their participation in the ensuing counseling of CET- 2020 or subsequent years, for selection and allotment of seats in BE/B.Tech/B.Arch., or such other professional courses in Government Colleges, Private Aided/Un-aided Colleges/ educational institutions for the Academic Year 2019-2020 on the basis of their relative merit and ranking in the imminent CET-2020 or subsequent years;
(iv)Insofar as MBBS/BDS courses are concerned, NEET Scheme shall apply for the Academic Years 2019- 20 as well as 2020-21 and a writ of mandamus is issued directing the respondent-State and respondent-Karnataka Examinations Authority to permit the petitioners and similarly situate candidates i.e., OCI Cardholders to register and to participate in the ensuing counseling being held for selection and allotment of seats for the Academic Year 2020-21 and subsequent years, on the basis of their relative merit and ranking;
(v) The Respondent-Government and the Respondent- Karnataka Examinations Authority shall take all steps as are necessary to facilitate and effectuate the aforesaid directions, forthwith and without brooking any delay in the matter, keeping in view CET-2020 or subsequent years.
8(4) Where the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17, in such manner as may be prescribed:
Provided that if it is not practicable to take possession of a property frozen under sub-section (1-A) of Section 17, the order of confiscation shall have the same effect as if the property had been taken possession of.
Relevant paragraphs: 30. Having heard the learned Advocates appearing for parties, I am of the considered view that following points would arise for my consideration:
(i) Whether sub-section (4) of Section 8 of PML Act is violative of Article 14 and Article 300A of the Constitution of India and as such proceedings initiated against petitioners under PML Act are liable to be quashed?
(ii) Whether the proceedings initiated under the PML Act by the authorities would be bad in law or without jurisdiction for want of existence of predicate offence or offence prescribed under the Schedule to the PML Act not being in existence on the date of initiation of proceedings under PML Act? OR Whether the offence of money laundering under Section 3 of PML Act is a stand alone offence?
(iii) Whether the proceedings initiated by the authorities under PML Act and passing orders of provisional attachment and its confirmation thereof is liable to be set aside or quashed on account of any procedural lapse prescribed under Sections 5 and 8 of PML Act?
(iv) Whether the notice/s issued by the authorities to take possession of the property on provisional order of attachment being confirmed is liable to be set aside?
(v) Whether writ petitions are liable to be dismissed on the ground of petitioners having not availed the alternate remedy of appeal available under Section 25 and under Section 42 of PML Act?
42. A construction which reduces the statute to a futility has to be avoided. The principle expressed in the maxim ut res magis valeat quam pereat i.e., liberal construction should be put upon written instruments so as to uphold them, if possible and carry into effect the intention of parties has to be adopted. (See Broom’s Legal Maxims 10th Edition, page 361, Craies on Statutes (7th edition), page 95 and Maxwell on Statutes (11th edition) page 221. ) A statute or a provision in any enactment must be so construed to make it effective and operative. The Hon’ble Apex Court in the case of CITvsS.TEJASINGH reported in AIR 1959 SC 352, have held that a statute is designed to be workable and interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable. It has been further held that courts will have to reject that construction which will defeat the plain intention of the legislature, even though there may be some inexactitude in the language used in the enactment.
44. Time and again, Hon’ble Apex Court in catena of judgments has held that whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute.
54. Section 8 as amended by the Amendment Act 2 of 2013 cannot be said to be arbitrary or violative of fundamental right of a person, even if the proceedings are continued for trial of scheduled offence resulting in acquittal and the alleged proceeds of crime pertained to that scheduled crime. It is to be further noticed that mandate of sub-section (4) of Section 8 to the authorities is to take possession of the property forthwith which is attached under Section 5 or frozen under sub-section (1-A) of Section 17 on the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed under sub-section (3). The authorities have no discretion at all and they are bound to take possession and the expression “possession” referred to in sub-section (4) refers to physical possession. The judgment of the KAMARUNNISA’s case relied upon by petitioners was rendered on 11.07.2012 i.e., pre 2013 amendment i.e., prior to Act 2 of 2013 coming into force. The amendment which was brought to sub-section (4) of Section 8 namely, the expression “possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17 in such manner as may be prescribed” was not found in sub-section (4) as it stood in the year 2009. Hence, the judgment of KAMARUNNISA would not come to rescue of the petitioners.
82. In the light of aforestated analysis, this Court is of the considered view that existence of a predicate offence for initiation of proceedings under the PML Act is not a condition precedent or in other words, the offence under Section 3 of the PML Act is a stand alone offence. Hence, the presence of a schedule offence as prescribed under the PML Act would not be condition precedent for proceeding against such person under the PML Act.
99. The expression “proceeds of crime” covers any property derived or obtained directly or indirectly by any person, as a result of criminal activity, related to a scheduled offence or the value of such property. The expression ‘property’ is elucidated in Clause (v) of Section 2, as any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. Section 2(u), therefore, does not envisage either mens rea or knowledge that the property acquired is a result of criminal activity.
107. Hence, this Court is of the considered view that contentions raised by the petitioners to quash the proceedings on the ground of the proceedings initiated against them is without jurisdiction for want of either there being no predicate offence or on the date of launch of proceedings under the PML Act, the predicate offence referred to in the schedule was not incorporated in the schedule and as such, there would be retrospective application of law cannot be accepted, inasmuch as, the offence of money laundering as indicated under Section 3 of PML Act is a stand-alone offence. It is to be further noticed that the proceedings initiated by the authorities by passing an order of provisional attachment and its confirmation thereof would not fail or lapse on account of any procedural irregularity for the reasons indicated herein above.
Relevant paragraphs: 21 & 22 In the present case, cheque has been issued by the accused in the name of Siddalingappa Tippanna Satyappanavar, who is ‘payee’. Holder in due course of the cheque is none other than the ‘payee’- Siddalingappa Tippanna Satyappanavar.
24. Proviso (b) to Section 138 of NI Act states that ‘the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque (within thirty days), of the receipt of information by him from the bank regarding the return of the cheque as unpaid.’
27. As noticed in Ex.P.1 and in Ex.P.3 and in the complaint filed by the complainant, it is not in dispute that the payee and holder in due course of the cheque is one Sri. Siddalingappa Tippanna Satyappanavar. The legal notice got issued by complainant-Ex.P.3 is not by the payee or holder in due course but by the complainant-Partnership Firm. The complaint filed before the learned Magistrate is also not by the payee or holder in due course but by the partnership firm M/s. Srinidhi Finance and Investment Corporation, Gadag, by its Managing Partner Sri. Siddalingappa Tippanna Satyappanavar. As stated earlier Section 142(1)(a) clearly states that no Court shall take cognizance of any offence punishable under Section 138 of NI Act, except on a complaint, in writing made by the ‘payee’ or, as the case may be, the holder in due course of the cheque. At the cost of repetition, it is seen that the payee and holder in due course of the cheque is not the complainant in the present case. Therefore, the primary mandatory requirement of Section 138 of NI Act, has not been fulfilled by thecomplainant herein. Therefore, the initiation of the complaint itself is not in accordance with law.
34. Admittedly, in the present case, cheque has not been issued in the name of partnership firm. It is also not the case of the complainant that it is a proprietary firm which stands on different footing. Therefore, it is clearly, evident from the factual aspect that the complainant firm is not the payee or the holder in due course.
Relevant paragraphs: 6. The learned counsel for petitioner has relied on a decision of this Court rendered in Criminal Petition No.1142/1991, in the case of Shankar Krishnasa Habib and Another Vs. State of Karnataka, decided on 16.09.1991. Relevant portion of para 11 of the said decision is extracted hereunder:
“11. ….. There is no explanation in the complaint or from the statements of other witnesses whether the house which was raided by the police on the date in question consisted of only these two persons or also the other members of the family. When prosecution says that the ganja was seized from the house of the petitioners, it could also have explained that who were in possession of ganja, whether these two petitioners or other persons who were staying in the house. Since all these questions are of doubtful in nature and whose correctness or veracity can be ascertained only when regular evidence is led in, I think this Court can hold at this stage what prosecution has not made out a case so as to connect the petitioners that they were in exclusive possession of ganja seized on 31.07.1991. Hence, the first ingredient of Section 30(b)(c) has been explained.”
7. The facts of the case in the above decision has some similarity to the facts of the present case. Bail granted.
The Karnataka High ordered emergent notice to the State Government on a public interest litigation filed by S. Basavaraj, Advocate and Member, Karnataka State Bar Council. The contention of the petitioner has been that caste based Boards are not traceable to any plenary legislation or constitutional provision.
After hearing the petitioner,the Division Bench consisting of Chief Justice Abhay S. Oka and Justice Vishwajeet Shetty ordered issuance of emergent notice to State Government.
On the interim prayer, the Division Bench opined that since the Board itself is not yet established, any action taken by the State Government will be subject to the result of the writ petition. The matter is adjourned to 4 January 2021 with direction to the Government to file counter without seeking any adjournment.
Relevant paragraphs: It is …the case of the complainant in the trial Court that the petitioner herein in her cross- examination in the complaint filed by her under D.V. Act, made a statement that her father through her friends secured liquor for the consumption of the complainant, the present respondent. She admitted that Ex.P.68 is with respect to purchase made in a Military Canteen.
10. Admittedly in the instant case, the present petitioner as accused in the trial Court has made a statement. Though the learned counsel submits that the said statement does not amount to publication, but, without much discussion on that, it can be held that when it is a Court proceeding and there is nothing on record to show that it was an in-camera proceeding where none else except the party making statement, the Presiding Officer and the learned counsels were there, it cannot be said that there was no publication of the said statement.
Compiled by S. Basavaraj and Kriti Taggarse Daksha Legal.
Daksha Legal 