M/s. Chaitayna Geo Surveys vs State of Karnataka and Others. Writ Petition 10392/2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352115/1/WP10392-20-09-12-2020.pdf

Relevant paragraphs: 8 &9. The State, when it enters into a contract, must do so fairly without discrimination, arbitrariness and unreasonableness. Any act of the State should withstand the test of judicial review under Article 14 of the Constitution. This power of review is normally exercised by the constitutional courts to rein any unbridled executive functioning. In a democratic State, rule of law is of paramount importance and the Courts are  required to act as guardians of  rule of law. Arbitrariness and unfairness in a contract defies the basics of rule of law. The respondent No.1  is the beneficiary of  the work done by the petitioner and it is clear from the facts and circumstances of the case that the instrumentalities  of  respondent No.1 have acted in a arbitrary and  unfair  manner after the work is completed.

10. The Hon’ble Apex Court in the case of ABL Internatiional Ltd. and Ors. –vs- Export Credit Guarantee Corporation of India Ltd. and Ors. ¹ has held as under:

“23. It is clear from the above observations of this Court, once State or an instrumentality of State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. .”

11. In the very same judgment, the Hon’ble Apex Court considered the question of maintainability of a writ petition  against a State for enforcement of right arising out of a  contractual obligation. The Hon’ble Apex Court at para-29 of the aforesaid judgment has held as under:

“29. From the above discussion of ours, following legal principles emerge as to the maintainability of  a  writ petition:-

• In an appropriate case, a writ petition as against  a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
• Merely because some disputed questions  of  facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
• A writ petition involving a consequential relief of monetary claim is also maintainable.”

12. The Apex Court in the case of KUMARI SHRILEKHA VIDYARTHI ETC., VS STATE OF U.P. AND OTHERS – AIR 1991 SC 537, has held that State action in contractual matter can be reviewed under Article 14 of the Constitution. In paragraphs 22, 23, 24, 28 & 29 of the said decision, the Apex Court has held as under:

“22. There is an obvious difference in the  contracts between private parties and contracts to which the State is a party, Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes failing within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground  of violation  of Article 14 by alleging that the impugned act is arbitrary, unfair  or unreasonable, the fact that the dispute also falls  within the domain of contractual obligations would not relieve the State of its obligation to comply with  the  basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every  case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.

23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and,  therefore, violative of Article 14 of the Constitution, there can be no  impediment in striking down the impugned  act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons.

27. The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being  primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend  even in the sphere of contractual matters for regulating the conduct of the State activity.

28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after  the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14.

29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy  or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional  ”

Compiled by S. Basavaraj, Daksha Legal.

M.N. Murthy and others vs The State of Karnataka and others. Writ Petition 12682/2020. Decided on 2 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352114/1/WP12682-20-02-12-2020.pdf

Relevant paragraphs: 2. As far as a writ of mandamus is concerned, the well settled law has been reiterated by the Apex Court in the case of Saraswati Industrial Syndicate Ltd. and others –vs- Union of India^. (1974) 2 SCC 630 Paragraphs-24  and 25 of the said judgment read thus:

“24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognized rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary  general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury’s Laws of England (3^rd Edn.), Vol.13,  p:  106): “As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.”

25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution. These appeals  must be and are, hereby, dismissed but in the circumstances of the case we make no order as to costs.”

3. As far as a writ of mandamus is concerned, a High Court can issue such a writ enjoining the respondents to perform their  statutory  duty. However, the condition precedent for invoking the jurisdiction of this Court for seeking a writ of mandamus is that the petitioner must demand justice and seek compliance of statutory obligations of the respondents.

4. When the question of making such a demand arises, the same has to be made to the authority, which is under the legal obligation to do or not to do a particular act. For example, if a grievance of writ petitioner is about the failure of a municipal corporation to take action of demolition of an illegal construction, naturally the demand in writing has to  be made to the competent authority under the Karnataka Municipal Corporations Act, 1976, which is empowered to take action of demolition. If the representation is made to an authority which is not competent to take action as demanded in the representation, the said authority is not under an obligation to act as per the representation.

5 & 6. The well settled rule is that ordinarily while filing legal proceedings, if more efficacious relief can be sought by a litigant, he must seek that relief. The representation has to be addressed only to the authority which is under a legal obligation to take action.

Compiled by S. Basavaraj, Advocate, Daksha Legal

All India Council of Trade Unions vs Union of India. Writ Petition 8928/2020 and connected matters. Order dated 9 December 2020.

Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-8928-2020-cw-09122020.pdf

Interim Directions Issued:

Therefore, this Court deems it proper to issue the following
interim directions:

i) The State Government shall place on record the
details about the number of First Information Reports
registered for the offences punishable under the
Manual Scavengers Act, the details of the cases in
which charge sheets were filed, the details of the
cases which are pending and the details of the
cases which resulted into conviction. The figures of
cases which resulted into acquittal shall be also
placed on record;

ii) The State Government shall place on record the
compliance of the decisions taken in the meeting
held on 23rd February 2018 under the Chairmanship
of the then Additional Chief Secretary;

iii) The State Government shall produce necessary
material to show that the District Level Survey
Committees as contemplated by sub-clause (c) of
Rule 2 of the Manual Scavengers Rules have been
duly constituted. The State Government shall also
call for the data from all the Districts for ascertaining
whether the District Level Survey Committees have
conducted surveys of manual scavengers and
whether the Committees have published the final list
of Manual Scavengers of the respective Districts;

iv) The State Government shall place on record the
necessary details as regards the constitution of the
State Level Survey Committees as well as the details
regarding the number of meetings of the State Level
Survey Committee has held and the gist of functions
so far discharged by the State level Committee;

v) The State Government shall place on record
comprehensive data about the survey of insanitary
latrines throughout the State and the details about
the conversion/demolition of insanitary latrines;

vi) The State Government shall also place on record
whether any notification has been issued in exercise
of power conferred by the second proviso of subsection (2) of Section 5 of the Manual Scavengers
Act;

vii) The State Government shall place on record the
details relating to final publication of the District-wise
final lists of Manual Scavengers and the publication
of State level final list of Manual Scavengers;

viii) The State Government shall call for reports from the
authorities/authorized officers specified for
implementing the provisions of the Manual
Scavengers Act under Section 18. The State
Government shall ensure that the directions are
issued to authorized officers/authorities to comply
with the requirements of Section 19;

ix) The State Government shall place on record the
details about number of meetings held at the
Districts, Sub-Divisional and the State level
Vigilance Committees;

x) The State Government shall issue directions to all
the Local Authorities to implement the provisions of
the Manual Scavengers Act and the Rules by
specifically referring to the obligations and duties
under various provisions. The compliance by the
Local Authorities shall be monitored regularly by the
State Level Monitoring Committee;

xi) The State Government shall direct all the Local
Authorities to comply with the obligations under subsections (2) and (3) of Section 4 and to immediately
ascertain the requirement of number of sanitary
community latrines within their respective
jurisdictions and thereafter, make construction of
such latrines. The data of such community sanitary
latrines constructed in the State shall be placed on
record;

xii) The State Government shall immediately initiate
awareness campaign on a large scale for elimination
of the practice of open defecation and ensure that all
Local Authorities comply with their obligation of
eliminating the practice of open defecation in their
jurisdiction. The State Government shall take help of NGOs and the Karnataka State Legal Services
Authority to conduct the campaigns in rural areas;

xiii) The State Government shall place on record the
steps taken for rehabilitation of manual scavengers
as provided in Section 13 by stating whether there
are any Schemes of Central and State Government
for rehabilitation of the manual scavengers as
contemplated by Section 13;

xiv) The Union of India shall place on record the copies
of the notifications, if any, issued in exercise of the
powers under explanation (b) to clause (g) of Section
2 of the Manual Scavengers Act;

xv) The State Government shall place on record all the
details regarding the compliance with the directions
contained in paragraph 23.3 of the decision of the
Apex Court in the case of Safai Karamchari
Andolan (Supra);

xvi) The Karnataka High Court Legal Services
Committee and all the District Legal Services
Authorities will be entitled to convene meetings of all
the stakeholders for assisting them for making
compliance with the directions issued by this Court
and for implementation of the Manual Scavengers
Act and the Rules framed thereunder; and

xvii) Compliance affidavits shall be filed by the State
Government and all concerned on or before 30th
January 2021.

Post the petitions on 2nd February, 2021.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Justice Budhihal R.B. is appointed as Chairman, Karnataka Administrative Tribunal.

Justice Budihal R.B: Born on 1-10-1956. Enrolled as an Advocate on 07-09-1983 and Practiced on Civil and Criminal side at Bagalkot and Bijapur. Appointed as District and Sessions Judge during May, 1996. Served as an Additional District and Sessions Judge at Bangalore and Gulbarga and as Principal District and Sessions Judge at Gadag, City Civil Court at Bangalore and Belgaum. Also served as the Registrar (Judicial), Registrar (Vigilance), Secretary to Hon’ble Chief Justice and Registrar General. Appointed as Additional Judge of the High Court of Karnataka on 24-10-2013 and Permanent Judge on 04.03.2016.

Justice Budhihal retired on 30.9.2018. The President of India appointed him as Judicial Member of Karnataka State Administrative Tribunal by Order No. A-11014/8/2018-AT, dated 12.06.2019. On 14.06.2019 his
Lordship assumed charge as Judicial Member of Karnataka State
Administrative Tribunal.

Daulat Singh by lrs. vs The State of Rajastan and others. Civil Appeal 5650/2010 decided on 8 December 2020.

Judgment Link: https://main.sci.gov.in/supremecourt/2009/20316/20316_2009_32_1501_25002_Judgement_08-Dec-2020.pdf

Relevant paras. 24. At the outset, it ought to be noted that Section 122 of the Transfer of Property Act, 1882 neither defines acceptance, nor does it prescribe any particular mode for accepting the gift.

25. The word acceptance is defined as “is the receipt of a
thing offered by another with an intention to retain it, as
acceptance of a gift.” (See Ramanatha P. Aiyar: The Law
Lexicon, 2nd Edn., page 19).

26. The aforesaid fact can be ascertained from the
surrounding circumstances such as taking into possession
the property by the donee or by being in the possession of the
gift deed itself. The only requirement stipulated here is that,
the acceptance of the gift must be effectuated within the
lifetime of the donor itself.

27. Hence, being an act of receiving willingly, acceptance can
be inferred by the implied conduct of the donee.

29. In order to show acceptance, the counsel for the
appellant drew our attention to the mutation records. The
Mutation entry in the Revenue Record of Gram Sedriya,
District Pali dated 28.10.1968 clearly reflects that half portion
of appellant’s land was bestowed as a gift by the appellant to
his son through a registered instrument of gift dated
19.12.1963.

30. Furthermore, the statement dated 31.08.1984, rendered
by the appellant­donor before the Court of Additional District Magistrate indicates that the donee was already a major at the
time of the execution of the gift deed. He further stated that
after execution of the gift deed the donee started cultivating on
the same.

32. Therefore, the abovementioned circumstances clearly
indicate that there was an acceptance of the gift by the donee
during the lifetime of the donor. Not only the gift deed in itself
contained recitals about transfer of possession, but also the
mutation records and the statements of the both the donor
and donee indicate that, there has been an acceptance of the
gift by conduct.

Discussion on Gift:

Sarojamma vs R.Venkataramanaswamy. Criminal Petition 4338/2020 decided on 7 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351592/1/CRLP4338-20-07-12-2020.pdf

Relevant Paragraphs: 6. The only question which arises for consideration of this Court in this petition is: “Whether the insertion of Section 143A of the N.I. Act is having a  prospective  effect or can also be given retrospective effect?”

7. It is well settled proposition of law that always the substantive law which affects the rights of the parties will have prospective effect unless it has been given a retrospective effect expressly in the statute  itself.  …..in the case of  G.J.Raja Vs. Tejraj Surana 2019  SCC OnLine SC 989, the issue  came  up before  the Court directly with regard to interpretation of Section 143A of the N.I. Act and the Hon’ble Apex Court has held that Section 143A of the N.I. Act is having prospective effect in nature and confined to the cases where the offences were committed after the introduction of Section 143A of the N.I. Act. At paragraph-23 of the said decision, it has been observed by the Hon’ble Apex Court as under:-

“23. In our view, the applicability of Section 143A of the Act must, therefore, be held to be prospective in nature and confined to cases where offences were committed after the introduction of Section 143A, in order to force an accused to pay such interim  compensation.”

When the Hon’ble Apex Court has  interpreted and laid down the ratio holding that Section 143A of the N.I. Act is to be prospective in operation and is made applicable only in the cases where the offence under Section 138 of the Act was committed after insertion of Section 143A in the statute.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Mr. S.P. Shankar, Senior Advocate, Bangalore

PDF File

Law of mortgages with special reference to Banking Law
Banking institutions, in India, are primarily supporting every commercial
transaction in aid of development of commercial enterprise. Howsoever well
possessed a man is, he would not convert his assets into liquid cash, for
purposes of investment in trade/commerce. He necessarily starts such
enterprises with borrowed funds. It is in this manner banking institution would
picture itself in trade and commerce. A banker is obviously a stranger to an
entrepreneur. Words of entrepreneur are taken as true and correct and on that
basis the banker would take up the proposal of the entrepreneur for processing
loan and the like. Risk–appetite is common to the banker and the
entrepreneur. The banker who deals with public money has greater
responsibility in marshalling its funds, channelizing the same for various
purposes and closely supervise utilization/application of funds by the borrower
and lastly, ensure recovery with interest and costs. The whole process is
complicated. Bankers have neither experience nor enterprise muchless
expertese in running the industry itself, should the repayment of borrowed
money is delayed or staggered. Entrepreneurs have often ended penniless,
midstream in their business. This aspect would destroy the confidence in the
entrepreneur and hopes of the banker besides affecting the security of the
depositors.
It is in the above background, collaterals and security for repayment of loan
with interest assumes primary importance. As stated earlier, bank deals with
funds of the depositor. Bank only manages such funds prudently and
economically so that besides serving the depositors, the bank should make
reasonable profit to take care of its administrative expenses and also provide
for accumulation of funds. Technical terms are avoided.
To strike a balance in the banking business, collaterals and securities for loan
would assume greater role. Even in the matter of obtaining security, bank has
to be prudent both in terms of getting the best security and loan processing is
less expensive. It is in this background, Law of Mortgages would picture itself
in the scenario. Mortgages of immovable properties and charges on them are
found and dealt with in chapter IV of Transfer of Property Act vide Sections
58-104. Kinds of Mortgages are dealt with in Section 58. They are simple
mortgage, Mortgage by conditional sale, Usufructuary mortgage, English
mortgage, Mortgage by deposit of title deeds and Anomalous mortgage. Of
several mortgages the one that facilitates the banker is the Mortgage by deposit
of title deeds.
Mortgage by deposit of title is also known as equitable mortgage. Subject
matter of Equitable mortgage is the “interest” of the mortgagor in the
mortgaged property, in contra distinction to “Right, Title and Interest” in the
property itself. The striking illustration in this behalf is the interest of lessee in
the mortgaged property, which could be merely the leasehold rights. This
aspect is further supported by Law vide Section 108(j) of T.P. Act. Section 108(j)
would empower and authorize lessees to transfer absolutely or by way of
mortgage or sub-lease the whole or any part of his “interest” in the demised
property. Section 58(d) R/w Section 108 (j) would thus permit a situation
where a long term lessee may mortgage the lease hold rights and secure loan
from a bank. This comes by way of assignment of lease hold rights. The earliest
decision in this behalf is one rendered by five judges of the Hon’ble Supreme
Court in the case reported in AIR 1952 SC 156. This decision is followed every
now and then, to sustain the banking transaction of loan advanced by a
banker on the security of lease hold rights.
Equitable mortgage is and shall not be a document containing terms of loan
like the amount lent, rate of interest or other terms and conditions of loan. An
equitable mortgage merely consists of a report or a writing by the borrower
affirming that he has deposited the title deeds, with the intent of securing loan
and creating a charge on his interest in the property and more importantly
recording the fact that he has delivered possession of deeds of title. The
significant and beneficial aspect of equitable mortgage is that property situated
anywhere in India can be subject matter of equitable mortgage at place other
than where the property is situate and in the authorized cities vide Section
58(d). Only a few cities in India are designated cities, where title deeds are
deposited. By fiction, equitable mortgage can be created by deposit of title
deeds of property situated elsewhere, in a designated city. This facility afforded
by the statute would augur well, in the matter of banking transactions. It does
not involve stamp duty as it is a mere report or memorandum evidencing
deposit of title deeds and delivery of those documents. It does not require
registration. The question as to whether equitable mortgage by deposit of title
deeds requires registration or not has been resolved by Apex Court in AIR 1950
SC 272, AIR 1965 SC 1591 and many more. High court of Karnataka in ILR
2000 Kar 1962 has held that memorandum accompanying the deposit of title
deeds containing only a statement that a deposit is made by way of security for
repayment of loan, does not need registration. The memorandum is only
evidence of the fact that the title deeds are deposited with the Mortgagee.
Documents of title could be mere patta of lands in mufassil areas. Document of
Mortgage is itself is a title of the mortgagee. An expired lease is a document of
title if it is renewed and kept valid. Share certificates could be document of
title. Where possession is given to vendee on the basis of agreement to sell,
such agreement is a good security. Original probate of a will accompanied by
certified copy of redemption relating to the property, even if lost, can create
equitable mortgage. The list of title deeds is only illustrative.
Essential aspect is delivery of title deeds made by the borrower to the creditor
or his agent. Such delivery must be with intent to create security. The bank
would save cost of stamp duty and registration and would therefore facilitate
credit transaction. This would improve commercial enterprise, a positive aspect
of Law.
Mortgage is a transfer of an interest in immovable property. The immovable
property has to be and is always specific. Mortgage could be to secure existing
or future debts. Mortgage can be effected by co-owners, Pardanashian woman
or by beneficiaries under Trust. There could be mortgage in favour of a minor.
In Simple mortgage, possession remains with mortgagor. A mortgagor would
bind himself personally to pay if the security offered in inadequate. Mortgagee
shall have the right to sell or cause the mortgaged property to be sold for
recovery of dues.
Mortgage by conditional sale creates liability. This type of mortgage is
ostensible sale with personal liability on default of payment of mortgage money
on a given date. There is distinction between mortgage by conditional sale and a
sale with clause for repurchase. That stipulation/clause for repurchase should
be in the same document contemporaneously entered while taking the loan.
Distinction between sale and mortgage would itself be a subject matter of
serious discussion.
Usfructuary mortgage involves delivery of possession, right of mortgagee to
appropriate rents and profits. There is no personal liability of the mortgagor.
Time limit for redemption is stipulated. Distinction between usfructuory
mortgage and lease is apparent and should be clearly understood.
An English mortgage is one where personal liability exists. Transfer is absolute
and not conditional, in contrast. There can be a proviso for re-conveyance.
Possession of the property is given to mortgagee.
Anomalous Mortgage is one that does not come under any of the above
mortgages.
Rights and remedies of mortgagee are set out in Chapter IV vide Sections 67,
67A, 68, 69, 69A -79. Marshalling and contribution are also provided in
respect of security to the bank. Thus mortgage by deposit of title deeds would
make the transaction ( borrowing from and lending by banks to debtors) an
effective and economical mode from the point of view of the Banker and the
borrower.
In addition, the bank has now the support of DRT Act and Securitization Act.
Jurisdiction of civil courts is barred in respect of recovery of dues outstanding
to a bank. Separate Forum is created in these days of Tribunalisation.
Realising the rigors of civil litigation, accompanied by need to pay advolerm
court fee and unimaginable contest raised by the borrowers and the never
ending process of execution, Union of India enacted DRT Act and Securitization
Act giving power to the banking institution to recover debts in an
expeditious manner and in the most inexpensive procedure. The laudable
object of Union of India in enacting this enactment is set out in Mardia
Chemicals.
Bank has the right to sell the mortgaged property. Though this right to sell is
available in common law it has its own inhibitions. Securitization Act has made
the maters far easy and has stipulated several conditions against the borrower,
were he to indulge in procrastinating means and methods. Sections 13 to 17 of
Securitization Act serve as a Code by itself. Banks are authorized to sell the
mortgaged property, realize the dues and make the recovered amount available
for further advances. This perspective is laudable from the point of view of law
makers. In reality even these two enactments have been deprived of the
intended teeth and verve.
Law of mortgages obtaining in common law, has yielded in favour of relieving
the bank from rigors of unending litigation and has assisted the borrower in
reducing the cost of litigation. This is hardly realized by the borrowers
muchless by the institution of Courts.
Validity of Securitization Act and the special procedure for bank for recovery of
dues have been tested, to the relief of Bankers. The common law remedies
available to a borrower including one time settlement is not be applied to or
enforced on the bankers. One time settlement ( OTS) is a matter of discretion.
Circular of RBI confers discretion on the Bank but never confers a right on
borrower. Inspite of this undeniable statement of Law borrowers invoke Article
226 and keep the banks under strangle hold.
Yet, the society has witnessed large scale borrowings and un-pardonable
defaults on the part of celebrated borrowers like Vijaya Malya, Nirav Modi,
Subrotho Mukherji and the hallowed persons. Society has also evidenced public
authorities like Ministers pressurizing the bank to lend money to these
celebrated and favoured borrowers. It became the lot of court in England to
notice and highlight in extradition proceedings that huge loans to Vijaya Malya
was blessed by the then Finance Minister and Prime Minister. The other
illustration is that of Punjab National Bank and allied banking institutions as
well as Co-operative banks. It is time to rationalize banking practices and
secure the interest of depositors irreversibly.
RBI is the prime and Central Bank of India. It is enjoined under the Banking
Regulation Act 1949 and RBI Act to assume responsibility, impose banking
sanctions and help recover huge debts. No debt is less than 10 to 15 thousand
crores. Interest is accruing. It is time that the Reserve Bank of India takes the
role of monitoring and enforce fiscal discipline.
S.P. Shankar
4-12-2020 Senior Advocate

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351465/1/CRLP101414-20-30-11-2020.pdf

Relevant paragraphs: 9.…The petitioner has a reasonable apprehension of his arrest by the respondent-police. The petitioner is presently working as Police Inspector in the Police Commissionerate, Hubballi-Dharwad. There are no previous complaints or remarks against him. Petitioner has undertaken to abide by the conditions which may be imposed by this Court. As such, this Court is of the view that the arrest and detention of the petitioner/accused is not warranted and he may be directed to appear before the Investigating Officer/respondent-CBI and co-operate with the investigation of the case.

10. It is well settled that law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. As observed by the Hon’ble Apex Court, a great ignominy, humiliation and disgrace is attached to the arrest and it would lead to many serious consequences. Usual anxiety of investigating agency is to ensure that an accused should fully co-operate with them and be available as and when they require him. An order of anticipatory bail does not in anyway, directly or indirectly, takeaway from Investigating Officer his power and right to fully investigate into charge made against an accused. In the instant case when the petitioner has already appeared and co-operated with the respondent, whenever called upon to do so, then custodial interrogation is not warranted. Hence, the relief sought by petitioner/accused can be granted by imposing suitable conditions.

Petition for anticipatory bail allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Abhiram Goswami v. Shyama Charan Nandi, 1909 SCC OnLine PC 16 : (1908-09) 36 IA 148 : (1909) 6 All LJ 857 : (1909) 19 Mad LJ 530 : (1909-10) 14 CWN 1 – Besides, Anangamohini and her successors had paid rent under their lease up to 1902, and if the lease was void as ultra vires the grantor, they were at least tenants from year to year, and therefore no question of adverse possession could arise. A tenant could not while paying rent acquire an absolute proprietary tenure against his landlord.

Jagdeo Narain Singh v. Baldeo Singh, 1922 SCC OnLine PC 46 : ILR (1923) 2 Pat 38 : (1921-22) 49 IA 399: AIR 1922 PC 272 : (1923) 45 Mad LJ 460 : (1922-23) 27 CWN 925 – With regard to the claim by adverse possession, as already observed, the mahal had all along been heir in thika; the lessee collected the rents and paid a fixed sum to the proprietor. If the thikedar failed to collect the rent from any individual tenant it would not create adverse possession against the proprietor

Abdul Rahman v. Prasony Bai, (2003) 1 SCC 488 – 32. In this case, we are also satisfied that having regard to the fact that the appellant himself was the tenant of Mangal Singh, he could not have raised the plea of adverse possession. As a tenant he could not have questioned the title of Mangal Singh. The very fact that escheat proceedings were initiated at the instance of the State also points out that the State proceeded on the premise that Mangal Singh had the right title in relation to the land in question and as he died intestate without leaving behind him any legal heir/representative, the same vested in the State. The appellant, as noticed hereinbefore, was allotted the land in question admittedly on the aforementioned premise, namely, Mangal Singh at the time of his death had title to the land in question or the suit property, but he died intestate. He, therefore, cannot be permitted to prevaricate from his stand at this stage.

G. Sathyanarayana Raj v. State of Karnataka, 2012 SCC OnLine Kar 1446 : ILR 2012 KAR 1831 : (2012) 2 Kant LJ 498 : (2012) 2 AIR Kant R 581 : (2012) 1 KCCR 628 – Furthermore, adverse possession, by its very nature, must be open and hostile to the person against whom it is sought to be claimed. It is inherently illogical to accept a claim for adverse possession in circumstances where the claimant essentially bases his title on a conveyance from a person against whom adverse possession is claimed. For example, a tenant may remain in possession for decades without end, but his tenure would not metamorphosise or transform into ownership by adverse possession.

S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 KAR 4129 : (2012) 4 AIR Kant R 424 : (2013) 1 KCCR 672 – 73. From the aforesaid stand in the written statement it is clear that, the case of the first defendant is he is in possession of the land as a tenant from the year 1950. He has filed an application for grant of occupancy rights. Now the matter is in Supreme Court. When a person gets into the possession of the land as a tenant, his possession is lawful at the inception and if he is continuing as tenant, his possession is lawful and therefore, such a tenant who according to him got into land under a tenancy continuing in possession as a tenant is not entitled to the plea of adverse possession.

G.M. Venkatareddy v. Deputy Commissioner, Kolar District, 2012 SCC OnLine Kar 7533 : ILR 2012 KAR 3168 : (2012) 3 AIR Kant R 527 : (2012) 3 KCCR 1999. – A person in possession of property without the authorisation or permission of the title holder/owner of that property for the period prescribed by law, attains recognition and protection of his possession on equitable considerations comes to enjoy the rights of adverse possession. This possession must be (a) continuous, (b) exclusive and (c) open, in the sense of being obvious and not covert, and most importantly (d) hostile to the title owner. In Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591 their Lordships have clarified that “possession for howsoever length of time does not result in converting permissive possession into adverse possession”. A tenant or licencee cannot claim adverse possession; but if he sets up a claim rivalling and challenging the title of the lessor/licensor and deliberately stops payment of rent/fee, his initial legal possession transforms into the illegal occupation of a trespasser. If the period of prescription, twelve years for a citizen and thirty years for the Government, elapses without the title owner initiating legal action for regaining possession from the trespasser, the latter’s adverse possession is protected. This doctrine may appear to favour the transgressor, but it is arguable that in actuality it respects the human right to enjoyment of property possessed, j improved and developed by the transgressor, against an indolent and careless owner. A presumption can also be drawn that the title holder is not interested in the property any longer. It need not be equated with stealth, since the possession of the trespasser has to be open and hostile to the title owner. As has been explained in Taylor v. Twinberrow (1930) All ER 342 and Fair Weather v. St. Marlebone Property Co (1962) 2 All ER 288 adverse possession “is a negative and consequential right effected only because somebody else’s positive right to access the Court is barred by operation of law”. Such rights are protective in character and akin to the doctrine of ‘part performance’ can be employed only as a shield and not as a sword. Expectedly therefore, a suit for declaration of ownership cannot be predicated on a plea of adverse possession, as has been held in Prem Nath Wadhawan v. Inder Raj Wadhawan 1993 (3) PLR 70 (Delhi Section) State of Haryana v. Mukesh Kuma (2011) 10 SCC 404, contains a detailed debate on the equities which arise whenever adverse possession is pressed into service. The preponderance if opinion is that the operation of adverse possession protects a trespasser or transgressor of the law and therefore ought not to be made available. References to the modern jurisprudence in America, United Kingdom and European Commission of Human Rights prefers the abolition or non-application of this principle

Compiled by S. Basavaraj, Advocate, Daksha Legal

Vikesh Kumar Gupta & Anr. vs The State of Rajasthan & Ors. Civil Appeal Nos.3649–3650 of 2020 decided on 7 December 2020. Justice L. NAGESWARA RAO, Justice HEMANT GUPTA, Justice AJAY RASTOGI.

Judgment Link: https://main.sci.gov.in/supremecourt/2019/28550/28550_2019_35_1501_24973_Judgement_07-Dec-2020.pdf

HELD: 11. Though re-evaluation can be directed if rules
permit, this Court has deprecated the practice of reevaluation and scrutiny of the questions by the courts
which lack expertise in academic matters. It is not
permissible for the High Court to examine the question papers and answer sheets itself, particularly when the
Commission has assessed the inter se merit of the
candidates (Himachal Pradesh Public Service
Commission v. Mukesh Thakur & Anr.) Courts have
to show deference and consideration to the
recommendation of the Expert Committee who have the
expertise to evaluate and make recommendations [SeeBasavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.) Examining the scope of judicial review with regards to reevaluation of answer sheets, this Court in Ran Vijay
Singh & Ors. v. State of Uttar Pradesh & Ors.

12. In view of the above law laid down by this Court, it
was not open to the Division Bench to have examined
the correctness of the questions and the answer key to
come to a conclusion different from that of the Expert
Committee in its judgment dated 12.03.2019 held
that court should not re-evaluate or scrutinize the
answer sheets of a candidate as it has no expertise
the matters and the academic matters are best left to
academics.

13. A perusal of the above judgments would make it
clear that courts should be very slow in interfering with
expert opinion in academic matters. In any event,
assessment of the questions by the courts itself to arrive
at correct answers is not permissible. The delay in
finalization of appointments to public posts is mainly
caused due to pendency of cases challenging selections
pending in courts for a long period of time. The
cascading effect of delay in appointments is the
continuance of those appointed on temporary basis and
their claims for regularization. The other consequence
resulting from delayed appointments to public posts is
the serious damage caused to administration due to lack
of sufficient personnel.

Compiled by S. Basavaraj, Advocate, Daksha Legal.