Relevant paragraphs. 5. ….By the impugned order dated 11-11-2016 the Commission directed the State Government to accord retrospective seniority to the fifth respondent with effect from 17-09-2012 and also grant him all consequential monetary benefits and also effect correction of date of entry into service of Superintendent in the seniority list inter se between the petitioner and the fifth respondent.
9. “whether the Commission was well within its jurisdiction to give a positive direction to the State Government upon adjudication of rights of the parties?”
10…it is germane to notice the genesis of the Commission. With the objective of replacing the Special Officer created under Article 338 when the Constitution was adopted, with a high level Five Member Commission for more effective management of constitutional safeguards for scheduled castes and scheduled tribes the Constitution (65th amendment) Act, 1990 was enacted.
Provisions of Article 338 of the Constitution of India and Karnataka Scheduled Castes and Scheduled Tribes Act, 2002 noticed.
13..A reading of the afore-extracted Sections 8 and 10 of the said Act, makes it abundantly clear that the Commission is not empowered to adjudicate upon the rights of parties. The power vested with the Commission of Inquiry and submission of a report cannot be extended to adjudicate all disputes between individual and a State or a statutory authority. The powers conferred do not contemplate that the Commission can examine matters like a civil Court and adjudicate dispute and pronounce its decision either interim or final or issue a direction of the kind that is issued in the case on hand.
14 & 17 The Commission cannot be construed to be a Tribunal or a forum discharging the functions of a judicial character or Court. Article 338 of the Constitution itself does not entrust the Commission with the power to take up the role of a Court or an adjudicatory Tribunal and determine the rights of parties inter se.. …Commission is not empowered to adjudicate and decide disputes between the parties and pronounce its orders either interim or final.
Relevant paragraphs: II (b)…the subject Regulations which wear both a right situation- reason and a clear scope-criterion on their face yield reckonability and justice; one has to bear in mind that what is being construed are the Campus Regulations and not the Cattle Trespass Act; true it is that, law speaks through language and not music; the rules which are promulgated to regulate & discipline the young minds in educational institutions should sing justice; this happens if a purposive construction based on language, purpose and discretion, is placed on these Regulations that admit a range of possibilities; they also vest some discretion since their purpose does not point to a single, unique legal meaning regardless of myriad circumstances; respondents ought to have used discretion to formulate, as objectively as possible, the purpose at the core of the legal text; however, they have been unjustifiably swayed away by the Rule of Textualism, to the prejudice of the poor student.
Regulation II (5) & (6) provide for condonation of shortage of attendance on non-medical grounds upto a maximum of 20% of the total classes conducted; the condonable range of attendance shortage on medical grounds between 75% & 67% is less than 20% of the total classes; the extent of condonable shortage cannot differ depending upon the varying grounds availing therefor; in other words, if a maximum condonable shortage of 20% on non-medical grounds does not compromise educational excellence, the same shortage on medical grounds too logically does not; if that be so, a Regulation prescribing less than 20% as the condonable limit of shortage cannot be treated as mandatory; it hardly needs to be stated that petitioner’s shortage of attendance by simple arithmetic works out to be far below the maximum condonable extent.
III (a) The precedents & practice of the University show that the subject Regulations have been treated only as directory, and not mandatory; pursuant to Court’s direction dated 11.11.2020, the Registrar of the University has filed an affidavit admitting that in a case of one particular student, condonation has been granted even when the he had less than prescribed minimum of 67% attendance; in a serious matter like this involving the career of a student, the argument of the kind that “one sparrow makes not the summer” (Shakespeare’s) would not come to the rescue of respondents; it is more so when it is not their case that this condonation was legally inadmissible; for the same reason, the principle that there is no estoppel against law, is not invocable.
It is noteworthy that this assertion of the petitioner on oath is not disputed by the respondents nor they have produced any record to discount its veracity; in fact, the affidavit filed on behalf of the respondents arguably borders perjury, since information relating to condonation of attendance in respect of above three more students has been withheld from the Writ Court with no justification whatsoever despite a specific direction; ideally speaking the respondent law University ought to have stated about the fact in the very beginning when it had filed its Statement of Objections; this is unjust & unfair, to say the least; however, it is not desirable that on this ground per se, the defence of the respondents be struck off.
V. As already mentioned above, in several cases the University had granted condonation of shortage of attendance under the very same Regulations; however, in the case of the petitioner, a step-motherly treatment is meted out to his detriment; this is not a happy thing to happen at the hands of the University which enjoys a great academic reputation in the country; the Apex Court in PRINCIPAL, KING GEORGE’S MEDICAL COLLEGE,“16. Whether the Regulations contained in the Ordinance governing admission to the post-graduate course of studies are mandatory or directory is a matter which the University shall have to consider after taking all relevant factors into account like the nature of the requirement, its purpose and the consequences of its relaxation on educational excellence.…One thing, however, must be made clear that if the University considers that any provision is not mandatory, its relaxation in particular cases has to be governed by objective considerations. No public authority, least of all a University which is entrusted with the future of the student community, can pick and choose persons for receiving the benefit of relaxation of the Regulations. In the first place, the rigour of a rule can be relaxed provided such relaxation is permissible under the Regulations or if the rule is directory and not mandatory. …”
In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned endorsements dated 31.7.2020 & 17.8.2020 respectively at Annexures-H & M; a Writ of Mandamus issues directing the respondents to promote the petitioner to the 4th year B.A. LL.B (Hons) for the academic year 2020-21, forthwith.
Relevant Paragraphs: Case law discussed. 43. In the backdrop of the analysis made by the various High Courts in the country and the interpretation placed on the crucial terms and expressions found in the PML Act, let me now proceed to deal with the issues raised by the learned counsel appearing for petitioners. The first and foremost question that need to be answered is, whether in the context of the provisions of the PML Act, prosecution initiated against the petitioners under section 3 of the PML Act and the confiscation proceedings resorted by the respondent under sections 5 and 8 of the PML Act are based on expost facto law and hit by the prohibition contained under Article 20(1) of the Constitution of India?
44. Petitioners appear to have put forward the plea of post facto law on the premise that the acts constituting the offences alleged against them were perpetrated prior to the amendment of the schedule to the PML Act and therefore, the action initiated against them falls within the mischief of Article 20(1) of the Constitution of India. This contention, in my view, in the factual setting of the case, is totally misplaced and misconceived and appears to have been canvassed by misconstruing the provisions of sections 3, 2(1)(u) and the Schedule appended to the PML Act. No-doubt, it is true that the Schedule to the PML Act was amended by Act 21 of 2009 and the various offences specified therein came to be included therein with effect from 1.06.2009. Nonetheless, in the instant cases, as on the date of initiation of action against petitioners, be it under section 3 or under section 5 of the PML Act, these provisions were very much there in the statute book. As already stated above, in all the cases, the prosecution under section 3 of the PML Act and adjudication proceedings under section 5 of the PML Act have been initiated against the petitioners subsequent to 1.06.2009. Therefore, the contention urged by learned counsel appearing for the petitioners that the petitioners are sought to be prosecuted on the basis of ex post facto laws is factually incorrect.
48. From the plain reading of section 3 read with section 2(1)(u) of the PML Act, it is clear that what is made punishable under section 3 is the activity connected with the proceeds of crime either by getting oneself involved in the process or activity connected thereto or directly or indirectly attempting to indulge or knowingly assist or knowingly be a party to the alleged activities and projecting it as untainted property, whereas the components of the offences under section 13 of the PC Act and Sections 120B, 419, 420 and other IPC offences are entirely different. The prosecution under section 3 of the PML Act, by no stretch of imagination, could be equated with the prosecution under section 13 of the PC Act or other offences specified in the Schedule namely IPC or other laws. They are distinct and separate offences. Prosecution under section 3 of PML Act is not based on the outcome of the trial of the offenders under section 13 of the PC Act. A reading of section 3 of PML Act in unamended form would clearly indicate that even without there being any conviction of the accused in a predicate offence and even if the offender under section 3 of the PML Act is not a party to the predicate offence, still the prosecution could be launched against him if the offender is found involved in any process or activity connected with the ‘proceeds of crime’.
The Notice dated 18 December 2020 issued by the Karnataka High Court shows increase in working days in 2021. The High Court will function on 11 Saturdays. However summer holidays remain intact.
Relevant paragraphs: 11. In Chapter 2.0 of the Zonal Regulations, various land uses permissible within each zone are listed. There are five main categories under which the land uses are grouped. They are Residential, Commercial, Industrial, Transportation, Public and Semi-Public. In the Tables enumerated under each category, there are sub classifications. But, most importantly, before the Tables could commence, a Clause which reads as follows, is provided: Though the various uses are listed, the corresponding Space Standards for buildings/uses are to be referred. The two main parameters are minimum size of Plot and the minimum width of Road.
12. What is noticeable is even at Sl.No.10, in C2 category of Commercial uses, where fuel stations and pumps are provided, it is clearly written in the brackets, “as per Table 7”. It is also noticeable that at Sl.No.11, which provides for Kalyana Mantaps, again it says, as per Table 7. Going by Clause 4.6.2 which regulates Commercial Axes, a Kalyan Mantap could be constructed if the plot size is more than 240 sq. mtrs.
15. In Union of India Vs. Tata Chemicals Limited (2014)6 SCC 335, it was held that it is a cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of a statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver. The courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have proper application in the circumstances conceivable within the contemplation of the statute.
16 &17…It is rather unfortunate that the opinion/advise of the Commissioner, BDA, was not heeded to. If the contesting respondents have proceeded inspite of such opinion expressed by the authorities of BDA, the respondents have taken the risk and they are to blame themselves. For the foregoing reasons, this Court is of the considered opinion that the NOCs granted by the Health Officer, BBMP and the Commissioner of Police, Bengaluru City, cannot be sustained.
Relevant paragraphs: 9. It is not in dispute that on 11.08.2020 about two thousand to three thousand miscreants gathered at about 8.00 pm by holding deadly weapons and have barged into the house of respondent No.2. They have not only destroyed all the household articles but have also looted gold and silver ornaments, as well as cash property documents. Thereafter they set the entire house on fire including the vehicles, two police stations, 86 private vehicles and 57 police vehicles. It is the specific contention of the learned counsel for petitioner-accused that the gravity of the offences cannot be a ground to deny bail and grant or refuse to grant bail lies within the discretion of the Court and it will be related to a larger extent, by the facts and circumstances of each particular case. In that light he has relied upon the decision in the case of Sanjay Chandra V.s Central Bureau of Investigation (2012) 1 SCC 40 ““40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.”
15…..The primary purpose of bail in criminal cases is to relieve the accused of imprisonment and also to relieve the said burden of keeping him in jail during a pending trial. At the same time to keep the accused in the custody of the Court whether before or after the conviction to assure that he will submit to the jurisdiction of the Court and will be in attendance there on whenever his presence is required. It is also noticed from the said decisions quoted supra, that while granting or refusing bail the Court has to take into consideration certain aspects. So in that light, I want to rely upon decision of the Hon’ble Apex Court in the case of Sidramappa Sathalingam Methri V.s State of Maharashtra reported in (2011)1 SCC 684 and subsequently Hon’ble Apex Court has re-visited the said decision in the case of Susheel Agarwal V.s State reported in (2020) Volume 5 SCC 1. Ultimately, the Court has laid down certain guidelines on the basis of which a bail application has could be considered with reference to the
facts of each of the cases at hand. It is brought to the notice of this Court in the case of Virupakshappa Gouda V.s State of Karnataka and another reported in (2017) 5 SCC 406 that Sanjay Chandra case, cannot be made applicable in each and every case for grant of bail.
18. Be that as it may as could be seen from the records, accused persons not only barged into the house of respondent No.2 and looted, destroyed house hold articles, they have burnt public properties i.e., two police stations, 86 private vehicles and 57 police vehicles. It shows that accused persons have taken law into their hands and have damaged the property and have created commotion in the society. Such act should not be encouraged. Bail petitions dismissed.
Relevant paragraphs: 19. A plain reading of the provisions of Order XII Rule 6 of the Code of Civil Procedure clearly depicts that where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admission. Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
20. The provisions of Order XII Rule 6 of the Code of Civil Procedure clearly indicates the admission made by the defendants has to be without waiting for determination of any other questions between the parties.
22. Janardhan Jog vs. Srikrishna reported in ILR 1989 KAR 1895 an admission contemplated by Order XII Rule 6 of the Code of Civil Procedure, has to be an absolute admission, capable of being worked out by itself. The other questions to be determined in the suit, on decree being made under Order XII Rule 6, should be such independent questions, reliefs granted on which should be capable of being granted without affecting the former decree (i.e, the one passed on the basis of admission). If the admitted fact cannot independently stand, and the ultimate relief or reliefs to be granted in the suit is interlinked with those facts, then, it will not be a proper exercise of the discretion, to make a decree under Order XII Rule 6 of the Code of Civil Procedure.
Overture : “MY NAME IS “TODAY”. “We are guilty of many errors and many faults, But our worst crime is abandoning the children; Neglecting the fountain of life. Many things we need can wait, But the child cannot. Right now is the time; His bones are being formed, His blood is being made, His senses are being developed. To him, we cannot answer, “Tomorrow”, His name is “Today”.
Relevant paragraphs: 16. Hague Convention on Inter Country Adoption came to be signed on 9:1:2003 and has come into force with effect from 1:10:2003 in India. The Hague Convention of 29.05.1993 on Protection of Children and Co-operation In respect of Inter-country Adoption (Hague Adoption Convention) protects children and their families against risks of illegal, irregular, premature or ill prepared adoptions. This convention, which operates through a system of National Central Authorities and reinforces the UN Convention on the rights of the child (Article 21) and seeks to ensure that Inter Country adoptions are made in the best interest of the child and with respect to his or her fundamental rights. It also seeks to prevent the abduction, the sale of, or trafficking of children. As already noticed herein above, India became a signatory to this Convention on 09.01.2003. The signatories to the Hague Convention Treaty are bound by it.
17. Article 4(b) of the Hague Convention 1993 mandate that a child is first placed for adoption in the State of origin and only after exploring such possibilities, said child should be placed for inter- country adoption. In fact, Section 59(1) of Juvenile Justice Act is in paramateria with Article 4(b) of Hague Convention. A bare reading of said provision would disclose that in the event of a child not being able to be placed with an Indian or Non-resident Indian PAP’s within 60 days from the date such child has been declared legally free for adoption, it would be free for inter-country adoption.
18. The principle underlying for grant of adoption of a child to the PAPs is to ensure the safety of the child or in other words, to ensure that child would not be placed in any hostile atmosphere or driven to any illegal activity for no fault of it and to ensure welfare of such children stringent steps are required to be adopted. In other words, the pivotal consideration would be the paramount interest of the child and to ensure prevention of trafficking or child being used for gain.
19. ….adoption Regulations notified in exercise of its powers conferred by clause (c) of Section 68 read with clause (3) of Section 2 of Juvenile Justice Act which has come into force with effect from 04.01.2017 and thereby said regulations have acquired statutory force.
22. Chapter III of the Regulation provides for procedure for adoption by PAP’s who are resident Indians and Chapter IV provides for adoption by PAP’s who are non resident Indian, Overseas Citizen of India and Foreign Prospective Adoptive Parents. Regulation 14 as found in Chapter IV would indicate that Non Resident Indian Prospective Adoptive Parents would be treated at par with Indians living in India in terms of priority of adoption of Indian orphan, abandoned or surrendered children. Regulation 21(1) discloses if one of the PAP’s is a foreigner and other is an Indian, such cases shall be treated at par with Indians living in India.
30.….first petitioner was an Indian citizen and second petitioner though was of Indian origin, had acquired the citizenship of USA by birth and as such, she has clearly declared in the first application her nationality by birth as ‘USA Citizen’. It would be apt and appropriate to note at this juncture, at the cost of repetition, that Regulation 21(1) mandates that even if one of the PAP is a foreigner and the other is an Indian, such case is to be treated on par with the Indians living in India.
Petition allowed. Mandamus is issued to respondents to consider and examine the application submitted by petitioners ..by keeping in mind the observations made herein above
Constitution of India. Vote cast by a MLA in Rajya Sabha election in the forenoon is valid though he is disqualified due to conviction and sentence by a Criminal Court in the afternoon. Supreme Court.
Relevant paragraphs: 11. Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified (i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected.
12. If a person, being a member of the Assembly, suffers a disqualification, his seat becomes vacant.(Article 190).
13. It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of People Act is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote.
17. The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore, any interpretation to Section 8 should be in sync with the Constitutional scheme.
19. Once the period of disqualification starts running, the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant, Article 190(3) uses the expression “thereupon”. We may have to keep this in mind while interpreting the words “the date of such conviction”.
30. We must point out at this juncture that even in criminal law, there is a vast difference between (i) the interpretation to be given to the expression “date”, while calculating the period of imprisonment suffered by a person and (ii) the interpretation to be given to the very same expression while computing the period limitation for filing an appeal/revision.
32. We have no doubt that disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of politics.
33. But what triggered the disqualification in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Penal Code. Therefore, the phrase “the date of conviction” appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted.
34. The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words.
35. In our view to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In Australia this principle has been described as an aspect of the rule of law “known both to Parliament and the Courts, upon which statutory language will be interpreted”
37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the word “date” can be used to denote occasion, time, year etc. It is also used for denoting the time up to the present when it is used in the phrase “the two dates”. Significantly, the word “date” can also be used to denote a point of time etc.
39. Inasmuch as a conviction for an offence is under a penal law, it cannot be deemed to have effect from a point of time anterior to the conviction itself.
61. Therefore, on the first issue we hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote. To hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m. about the outcome of the criminal case in the afternoon or in vesting with the Election Commission, a power to do an act that will create endless confusion and needless chaos.
Suresh Shah vs Hipad Technology India Private Limited. Arbitration Petition (Civil)(S) 8/2020 decided on 18 December 2020. Chief Justice S. A. Bobde, Justice A. S. Bopanna and Justice V. Ramasubramanian.
Relevant paragraphs: 15. A perusal of the provisions indicate the manner in which the determination of lease would occur, which also includes determination by forfeiture due to the acts of the lessee/tenant in breaking the express condition agreed between the parties or provided in law. The breach and the consequent forfeiture could also be with respect to nonpayment of rent. In such circumstance where the lease is determined by forfeiture and the lessor sues to eject the lessee and, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear,Section 114 of TP Act provides that the Court instead of passing a decree for ejectment may pass an order relieving the lessee against the forfeiture due to which the lessee will be entitled to hold the property leased as if the forfeiture had not occurred. Under Section 114A of the TP Act a condition for issue of notice prior to filing suit of ejectment is provided so as to enable the lessee to remedy the breach.
16. Such equitable protection does not mean that the disputes relating to those aspects between the landlord and the tenant is not arbitrable and that only a Court is empowered to waive the forfeiture or not in the circumstance stated in the provision. In our view, when the disputes arise between the landlord and tenant with regard to determination of lease under the TP Act, the landlord to secure possession of the leased property in a normal circumstance is required to institute a suit in the Court which has jurisdiction. However, if the parties in the contract of lease or in such other manner have agreed upon the alternate mode of dispute resolution through arbitration the landlord would be entitled to invoke the arbitration clause and make a claim before the learned Arbitrator. Even in such proceedings, if the circumstances as contained in Section 114 and 114A of TP Act arise, it could be brought up before the learned Arbitrator who would take note of the same and act in accordance with the law qua passing the award. In other words, if in the arbitration proceedings the landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent and breached the express condition for payment of rent or such other breach and in such proceedings the tenant pays or tenders the rent to the lessor or remedies such other breach, it would be open for the Arbitrator to take note of Section 114, 114A of TP Act and pass appropriate award in the nature as a Court would have considered that aspect while exercising the discretion.
Daksha Legal 