Facts: Suit for specific performance decreed. Original Judgment debtor refused to execute sale deed. Execution petition filed. The executing court appointed a Court commissioner to execute registered sale deed in favour of the plaintiff decree holder. The Sub-Registrar returned the document insisting no objection certificate under the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. The execution petition was closed for the time being by the court with liberty to re-open when cause of action called for. This order was challenged before the Hon’ble High Court.
Relevant paragraphs: 7. Learned HCGP submitted that the role of the Sub- Registrar is not just to register each and every document produced before him for its registration, but wherever his act of registering the document is against any law or guidelines, then he can return the document un-registered. Stating that the said point has been extensively observed by the coordinate Bench of this Court, he placed a copy of the order dated 05.11.2020 passed by the coordinate Bench of this Court in the case of Sri. R. Sampath Vs. State of Karnataka by Its Secretary, Department of Revenue and Others, in W.P.No.18660/2013 (KLR-RES).
8. The Sub-Registrar is required to follow the procedure laid down under the Karnataka Registration Rules, 1965 (henceforth referred to as ‘the Registration Rules’, for brevity). Rules 69 to 81 of the Registration Rules, and more particularly, Rule 171(1) mentions that Sub-Registrar can also refuse registration of documents in terms of what is stated in the sub- rule. Therefore, though the Sub-Registrar has got the power to register a document, equally he has got power to refuse the registration of a document also, however, the said power of refusal must be exercised within the parameters prescribed under the Karnataka Registration Act, 1908 as well the Registration Rules.
9. Section 71 of the Registration Act mentions that reasons for refusal to register should be recorded. Rule 171 of the Registration Rules also mentions that reasons for refusal to register has to be recorded in Book No.2. When there is refusal for registration, as provided under Section 71 of the Registration Act, is appealable under Section 72 of the Registration Act. An appeal would lie to the Registrar to whom the said Sub-Registrar is sub-ordinate. Such an appeal is required to be filed within 30 days from the date of the order.
10. Thus, it is clear that a Sub-Registrar can refuse registration in terms of Section 71 of the Registration Act read with Rule 171 of the Registration Rules, for the reason recorded by him in book No.2….Therefore, it is very clear that, merely because an Executing Court has appointed a Court Commissioner for execution of a sale deed in favour of the decree holder, it does not necessarily mean that the Sub-Registrar should invariably register that document though according to him several of the requirements for its registration has not been complied with by the parties to the documents.
Therefore, suffice it to say that the Executing Court, though has not given the detailed reasons for its finding, however, has arrived at a finding for closure of execution petition for the time being reserving liberty to the decree holder to open it when cause of action calls for and also observing that the decree older had efficacious remedy before the Competent Forum for the alleged return of the document by the Sub- Registrar. I do not find any irregularity, perversity in the said order of the Executing Court warranting any interference at the hands of this Court.
INTRODUCTION: Artificial intelligence is a huge step towards the future cartoons like Jetsons and Jimmy Neutron envisaged in us. The field of robotics is evolving rapidly with huge technological advances taking place every day. Artificial intelligence has entered whole new levels with the development of Sophia, the first humanoid robot by Hanson Robotics, a Hong-Kong based company. Even more interesting is the fact that is received a citizenship from Saudi Arabia in October 2017, for which Saudi Arabia was criticized for giving more rights to machines than women of its country. Ironically, Sophia has started advocating for women’s rights in Saudi and is emerging as a huge advocate for human rights. With Sophia occupying the intrigues of the world and the media, the question that arises is that the quick expansion of the world of robotics, how should the boundaries be maintained through law and what legal ethics and norms should govern such a dimension of technology.
American science fiction author, Isaac Asimov had devised three laws for robots in 1942 in his story called, Runaround. These laws are also known as Asimov’s laws, which are: “(1) A robot may not injure a human being or, through inaction, allow a human being to come to harm. (2) A robot must obey orders given it by human beings except where such orders would conflict with the First Law. (3) A robot must protect its own existence if such protection does not conflict with the First or Second Law” . Years later, while drafting a study on recommendations on the regulations and legal framework to govern the legislations on such laws by the European parliament as European Civil law rules for robotics and publishing Draft Report with Recommendations to the Commission on Civil Law Rules on Robotics, Asimov’s laws were used for guidance.
These drafts can be used by other States, inside or outside EU as relevant model while drafting codes for robotic legislations in future. This paper intends to roughly sketch the problems that are faced while drafting laws for robots and solutions which are posed on these problems. In addition, it would bring out the threats and warnings which have been brought on such advancements and technological changes.
PROBLEMS FACED WHILE DRAFTING RECOMMENDATIONS 1. Coming up with a common definition for robots Of the several issues faced by the committee, the first one was to pan out a common definition of a smart robot that would be acceptable by various communities and without a proper definition, such regulations would seem inoperable. What constitutes of a smart robot can be a subject hotly debated among many and would consist of a many subjective takes on who is or more appropriately put, what is a robot without any global consensus. Therefore, coming up with a definition which is inclusive of all categories of robots and is acceptable by globally is a grueling task. There are many problems with coming up with a unitary definition, for example, should ‘Smart Robot” only consider autonomous robots which need almost no human intervention to operate or should also include surgical robots which operate on a slave-master model and need human intervention to operate. Robots like Da Vinci’s Surgical system which are highly revolutionary systems, should they also be counted under smart robots despite having to be controlled by human interference or should only highly automated and smart robots make the cut is a difficult to respond to.to. Robots are highly diversified, consisting of various applications and codes, forming a definition to govern all the models would be next to impossible. However, to tackle this issue, a broad definition with a narrower definition beside it which takes in account of all the relevant categories like autonomy, control, human intervention can be created. These narrower definitions with sub categories and sub classes of robots will aid in keeping all the different kinds of robots under the regulatory boundaries.
2. ISSUE OF LIABILITY IN ROBOTICS Error by machines is more common than expected. There will be many situations where there would be damage caused by the robots, and in these situations, the someone would have to take up the liability. For this reason, there is a motion of giving the robots another category of individuals, that of electronic persons. Legal consequences of providing a separate legal status to robots are being examined, this is so through a separate legal identity, the robots which are autonomous and designed to make decisions on their own can be held liable for damages and bear consequences of their actions. Because of some robots being autonomous and make decisions by themselves, there must be some liability for their actions and through awarding such a status as a separate legal person, they can make good the damage they caused. However, this path poses some problems. Primarily, that begin a legal person confers upon you some rights and duties. A Legal person, is expected to have some human consciousness and natural feeling for some rights and duties being conferred on it. A Legal personality is expected to have some human force driving it. For example, a limited company is a separate legal person, however, it is controlled by its board of directors, shareholders and promoters. When the corporate veil is lifted, the controlling humans behind it are held liable. However, in this case, there is no human force for some categories of robots like the ones which are highly automated. Robots do not have the consciousness and thinking like a natural person, therefore giving them a status as a legal person just for the owning up for the liability doesn’t transpire into a good idea. A legal person has rights, which a natural person has. These are rights like, right to life or right to live with dignity. Such rights if conferred upon a robot, would render it impossible to send them in inhumane conditions or situations like war leaving them useless as the purpose of robots is to perform tasks humans cannot. Thus attributing personhood to robots will erase the boundary between humans and machines and would present unprecedented problems. Problem with determining liability of a Robot is fairly complex in nature. If a robot commits an error, it can be difficult to determine the source of such an error. There can be a problem with the decision of the autonomous robot, or it could be due to a technical glitch in the software, where the software company would be held liable. It could be due to user error. This does not only stretch till here. In situations like when a robot is learning to perform a task and causes harm to a third party, will the owner of the robot be held liable. Instead, other options for compensation for damages can be set in place, for example insurance or organizations set up in different industries which specifically deal with this issue.
3. FORMATION OF ROBOETHICAL GUIDELINES. With the emerging technology, it becomes imperative that there be some ethical standards and guidelines governing the actions of robots. These ethical guidelines must include, first and foremost the principle of protecting humans from harm by the robots. Deriving it from the laws of Asimov, his first and most fundamental law. Robots must do no harm to human beings. There is a lot of negative image of robots when it comes to including them in daily lives and the perception of robots taking over the control by humans and dominating the human species is widespread. Following such ideas, the touchstone of all the laws revolving around robotics should be the protection of human beings from any possible harm from any robot. These should include regulations like a robot should be incapable of being turned into a weapon to harm third party or can be used to self-harm. Other ethical guidelines include, refusing aid of robots or restraining robots from violating any form of human liberty or dignity. Human dignity and liberty forms one of the most core foundations of human rights, found in UDHR, in Article 5(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms
Another essential sphere which needs roboethical guidelines is protection of privacy of individuals. Robots will have access to mass information, from medical records to credit card information. Robots can be used to breach into such information. Right to privacy is fundamental to human life and dignity and therefore individuals needs to be protected from such breaches. Pivotal personal information can be leaked and obtained and therefore, guidelines surrounding the usage of data needs to be closely looked in. Robot in medical service or banking etc., need to be heavily monitored for protection of privacy. Similarly, there should be guidelines so social ties of humans don’t end with the presence of robots. Robot companions or sex robots should not substitute human relations and therefore there should be restrictions regarding such a substitution to maintain human relations. These are some areas where the guidelines need to be in place, similarly, there are many areas where roboethical guidelines need to be placed to avoid any harm or difficulties in the future.
4. TESTING OF ROBOTS For such an advancement, it becomes imperative to provide an environment for the robots to be tested and developed. Such a space is needed however, these testing and development should be carried out in a heavily controlled ambience so no harm comes to humans in any form. The research and development space should be regulated and monitored to protect individuals. Therefore, proper and stringent technical standards need to be in place concerning the testing and monitoring such an environment to avoid emerging of any kind of danger to lives around it.These are some of the difficulties which can crop up while debating and drafting legislations for robots. Due to its rapidly advancing nature, sooner or later the need for such legislations will be inevitable and such problems pose huge difficulties in determining the laws which would be appropriate for laws governing robots.
COMPETITION REGULATIONS Other problems that could occur with expansion in Artificial Intelligence is that there could emerge a competition between countries for the technology. There could be weaker regulations and guidelines so that the investment and development of such technology happens in their country. Weaker regulations could prove disadvantageous for the citizens of that country as there would be less protection against the possible dangers that would be brought in by emerging expansion of artificial intelligence. Similarly, since such technology would give a huge advantage to people who have access to it, there would be many private actors who would try to acquire it. Thus, due to these reasons there needs to be efficient competition regulatory guidelines in place for no unfair advantage or unwanted use of the technology which could pose threats later.
Threats and warnings surrounding the emerging advances in robotic technology Apart from the obvious fear the persists in humans of robotic domination, there are other threats which have been brought into attention. First and foremost being the loss of labour due to human labor being substituted by Robots due to their efficiency. Many robots are made for the purpose to perform tasks which humans were incapable of performing or it was too dangerous for humans to performs however, leaders like Stephen Hawking, Elon Musk and Bill gates have warned about the mass unemployment would be accelerated due to this robot revolution. Jobs in industries like transportation, Data analysis, coding or in customer care etc. would also be lost to robots due to their efficiency. This could lead to a massive damage in the economies of countries with huge populations who work in these industries on low wages due to the bulk unemployment. To combat this, Bill Gates has endorsed taxing robots who take human jobs suggested by Mady Delvaux in the draft report submitted to the European Parliament, however that idea was rejected by European Union.
Apart from huge hits on economies and loss of jobs, there is a section of robots which are being made to substitute soldiers from their jobs as they’re risky and to avoid human casualties. Thus, robots to combat are being prepared. However, many researchers are worried that these robots could also become a threat to humans and turn into killer robots. These machines would become so automated that they would automatically become a danger to humans as killer machines. Military have started adopting automated machines already. For example, South Korea has deployed, Super aEgis II, which is a gun that can automatically identify the target and kill it.
CONCLUSION With emerging revolution of robots, there are many problems that are emerging in various fields as well. Be it in regarding the protection of individuals’ dignity and liberty or relating to economy of a country. It isn’t restricted to one sector and the difficulties exist in all fields.
Aishwarya Mishra, 2nd year law, OP Jindal Global University,Sonipat, Haryana (Intern, Daksha Legal)
Relevant paragraphs: A careful understanding of requirement under section 304A are that there must be a direct nexus between death of a person and a rash and negligent act of accused. A remote nexus is not enough for the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section. A mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as carrying with him a criminal liability. Criminal rashness is a hazard of dangerous act with the knowledge that it is so, and that the which may cause an injury. Therefore it is necessary for prosecution to establish that act of accused is rash or negligent and by such act death has occurred and that act does not amount to culpable homicide. Therefore question is, whether in the facts and circumstances of present case and material on record, act of respondent can be said to be rash or negligent.
24..As stated earlier, it is case of the prosecution that accused has been implicated in the present case for the reason that he was in-charge as a Section Officer of that particular area where the incident occurred and that he is responsible for the electric lines and it is his duty to maintain the electric lines so that it does not lead to any untoward incident.
25. Admittedly, it is not the case of PW.1 or PW.4, the grand- father and father of minor boy that accused herein is directly responsible for death of the minor boy. In fact, in the evidence, they have clearly stated that they do not know who is responsible for the cause of death and it is further stated that they do not even attribute the mistake of KPTCL but they are of the opinion that it should have been checked by the responsible persons of KPTCL. Therefore, there is no clear cut criminal rashness or negligence attributed directly to accused herein. In the present case, it has to be seen whether there is a direct nexus between the accused in the cause of death of minor boy Prashant.
26. Criminal negligence is gross and culpable negligence or failure to exercise that reasonable and probable care and precaution to guard against the injury either to public generally and or to individual in particular.
33. In view of the above, the judgments of Hon’ ble Supreme Court and the Co-ordinate bench of this Court, it is crystal clear that to attract the provisions of Section 304 -A, there has to be a direct nexus of gross criminal negligence or culpable negligence or failure to exercise that reasonable and proper care and that such act is so directly attributable to the rashness and negligence of accused and such act of accused is the proximate cause of death. In the present case on hand, there is no allegation that the death of the minor boy Prashant was the direct result of any act or omission on the part of accused.
Appeal allowed.
Cases referred. (2015) 12 SCC 781, Sharad Kumar Sanghi vs. Sangita Rane, AIR 1972 SC 1150, Ambalal D. Bhatt vs. The State of Gujarat; AIR 1965 SC 1616, Kurban Hussein Mohamedalli Rangawalla vs. State of Maharashtra; AIR 1979 SC 1848, Syad Akbar vs. State of Karnataka; (2012) 5 SCC 661, Aneeta Hada vs. Godfather Travels and Tours Private Limited; 2013 AIR SCW 26, Lahu Kamlakar Patil and another vs. State of Maharashtra; 2007 Crl. L. J. 486, B. E. Chandrashekar and others vs. State of Karnataka; Crl. Rev.Pet. No. 818 of 2017 dated 9:2:2018 Ajay Kharbanda vs Central Bureau of Investigation.
The State of Maharashtra and another vs Keshao Vishwanath Sonone and another. Civil Appeal No. 4096 of 2020 decided on 18 December 2020. Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah.
Question: Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste “Gowari”, which is not included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as “Gond Govari” which is included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to adjudicate such claim?
HELD: The caste ‘Gowari’ is not the same as ‘Gond Gowari’. The High Court could not have granted declaration of caste ‘Gowari’ as ‘Gond Gowari’.
Relevant paragraphs. 58. This Court after noticing the constitutional provisions held that it is not possible to say that State Governments or any other authority or courts or tribunals are vested with any power to modify or vary the Scheduled Tribes Orders. This Court also held that no enquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included.
59. The Constitution Bench State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4 reiterated that the power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament and Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order.
61. In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.
61. In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950. It is further clear that there is no conflict in the ratio of Constitution Bench judgments of this Court in B. Basavalingappa Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269 and State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4. The ratio of B. Basavalingappa’s case as noted in paragraph 6 of the judgment and extracted above is reiterated by subsequent two Constitution Bench judgments in Bhaiya Lal Vs. Harikishan Singh and Ors., AIR 1965 SC 1557 and Milind’s case. There being no conflict in the ratio of the above three Constitution Bench judgments, we do not find any substance in submission that for resolving the conflict, the matter need to be referred to a larger Constitution Bench. We, thus, answer question Nos.1 and 2 in following words:-
(i) The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste “Gowari” that it be declared a Scheduled Tribe as “Gond Gowari” included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken evidence to adjudicate the above claim.
(ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa’s case and Milind’s case.
101. We in the ends of justice directs that the admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between 14.08.2018 till date shall not be affected by this judgment and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them. However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day.
Nivarti Govind Ingale v. Revanagouda Bhimanagouda Patil,
1. Delay condoned.
2. Substitution and impleadment allowed.
3. Leave granted.
4. We have heard learned counsel on both sides.
5. This appeal by special leave arises from the judgment and order of the Karnataka High Court, made on 6-1-1992 in RSA No. 933 of 1978.
6. The admitted position is that one Radhabai, mother of the appellants was the owner of 4 acres 38 gunthas of land in Paschayapur Village in Bijapur Taluka and District in Karnataka State. According to her, she, with a view to dig a well in RS No. 299, namely, the same land, had obtained a loan in the year 1961 from the father of the respondent in the sum of Rs 1000. Since she was not in a position to complete the digging of the well, she approached him again for a sum of Rs 2000 to complete the well. The respondent’s father who is a constable had advanced the money on the condition that she would execute the sale deed in favour of his minor son, i.e., the respondent. Accordingly, she executed the sale deed with an agreement of reconveyance which was accordingly executed on 31-8-1961. She stated that she has paid from time to time a sum of Rs 7000 and she asked the respondent to execute the reconveyance and the respondent had not executed the deed of reconveyance. Consequently, she filed the suit for specific performance. The trial Judge decreed OS No. 4 of 1966 on the file of the Additional Munsif, Bijapur on 3-4-1976. On appeal, the Additional Civil Judge allowed the appeal on 7-11-1977 and dismissed the suit. The second appeal was dismissed by the High Court. Thus, this appeal by special leave.
7. The High Court found that since the agreement of reconveyance was not for the benefit of the minor, the decree for specific performance cannot be granted. The leave of the Court was not obtained for entering into such an agreement and, therefore, the appellant is not entitled to the benefit of the specific performance. We find no force in the reasoning of the High Court in the facts and circumstances of this case. It is seen that the appellant’s mother is the owner of the property. She had obtained loan from the respondent and executed the sale deed with an agreement of reconveyance. When the father of the respondent had obtained the sale deed in the name of the minor, obviously he is bound by the agreement of reconveyance as well. Having received the money, he had not executed the sale deed. Necessarily, the appellants are entitled to seek the specific performance. Under these circumstances, the question that agreement was not for the benefit of the minor which is a legal proposition, cannot be applied to the facts. It is contended that subsequent purchaser from the father of the respondent of the selfsame property, without knowledge of the pendency of the suit is bound by the agreement. We find no force in the contention. The appellants have been seeking the remedy in the civil suit; any subsequent sale will be barred by the doctrine of lis pendens. Therefore, the subsequent purchaser is bound by the decree of specific performance and liable to reconvey the property to the appellants. The decree of the trial Judge is accordingly restored and that of the High Court and the Additional Civil Judge stand set aside. The remedy of recovery of the purchased money from the respondent may be sought in an appropriate action.
L.Ramareddy vs The State of Karnataka and others. Writ Appeal 1415/2018 decided on 1 December 2020. Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda.
Relevant paragraphs: 18. The object and purpose of the LA Act, 1894, is for acquisition of the land for public purposes and for companies. The expression public purpose is defined in Section 3(f) of the said Act. It is an inclusive definition and not an exhaustive one. Section 3(f) is substituted by the Karnataka Amendment with effect from 24.08.1961. On the other hand, the object of the BDA Act, which has substituted City Improvement Trust Board Act, is to provide for the establishment of a Development Authority for the development of the city of Bangalore, now Bengaluru, and areas adjacent thereto and matters connected therewith. Whereas, the provisions of LA Act, 1894, is to acquire land for public purposes, determination of compensation and matters connected therewith and is a general enactment, the object and purpose of the BDA Act is for planned development of Bangalore Metropolitan Area and acquisition of land under Sections 17 and 19 of the BDA Act by issuance of Preliminary and Final Notifications is incidental which is for the purpose of development schemes, as enunciated in Chapter III of the BDA Act, for Bangalore Metropolitan Area.
22. Adverting to Section 27 of BDA Act, the Hon’ble Supreme Court has observed that it places an obligation upon the Authority (BDA), to complete the scheme within a period of five years and if the scheme is not substantially carried out within that period, it shall lapse and the provisions of Section 36 shall become inoperative, i.e. this is a provision which provides for serious consequences in the event the requisite steps are not taken within the specified time.
30. Further, from the words of Section 24 of the 2013 Act, what is significant to note is the fact that the said Section expressly refers to land acquisition proceedings initiated under the LA Act, 1894. The said Section does not incorporate the words “or proceedings initiated under any other enactment”. Therefore, the expression “land acquisition proceedings initiated under the LA Act, 1894” are significant and must be given its natural and plain meaning and the said expression cannot be given an expansive interpretation by adding words to the provision, in the absence of the provision itself giving rise to any such implication. In this regard, the rules of interpretation of a statute would become relevant and reliance could be placed on guiding principles of interpretation of statute. One such principle is that the Court is not entitled to read words into a provision of an Act or Rule for, the meaning is to be found within the four corners of the provision of an act or rule, as in the instant case. Therefore, while it is not permissible to add words or to fill in a gap or lacuna, on the other hand, effort should be made to give meaning to each and every word used by the legislature. Thus, the golden rule of construction is that the words of a provision of a statute, or rule must be first understood in the natural, ordinary or popular sense. Phrases and sentences must be construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary.
33. Further, Section 24 creates a new right in favour of land owners in as much as they are entitled to relief under certain circumstances as stipulated in Section 24 of the Act. One such relief is under sub-section(2) of Section 24 of the Act, dealing with lapse of acquisition by a fiction. It is a deeming provision, provided the stipulations therein are complied with or the conditions mentioned therein exist. One overbearing condition is that the acquisition must have been initiated under the provisions of LA Act, 1894. Thus, if acquisition is initiated under any other Central or State enactment, Section 24 does not apply.
41.Therefore, for a declaration of lapse of acquisition, the pre-conditions or conditions precedent mentioned under sub-section (2) of Section 24 of the 2013 Act must apply. Most importantly the said conditions must prevail in an acquisition initiated under the provisions of the LA Act, 1894, and not with regard to acquisition initiated under any other enactment be it Central or State enactment. Hence, before land owners could seek relief under sub-section (2) of Section 24 of 2013 Act, which is a right created in their favour, the basic postulate that must be borne in mind is to ascertain, in the first instance, as to under which law, acquisition has been initiated; whether under the provisions of the LA Act, 1894 or any other law. If it is under any other law, then in my view Section 24 would not be applicable to such acquisitions.
42. As already observed, Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of land owners whose lands are subjected to acquisition under any State enactment, such as the BDA Act or KUDA Act. In fact, the Parliament itself has been conscious of the fact that 2013 Act repeals and substitutes only LA Act, 1894, and not any other Central enactment or for that matter any other State enactment dealing with acquisition of lands.
44. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to acquisitions which have been initiated under the provisions of any other enactment particularly, State enactment, such as, BDA Act. The said Section is restricted to only those acquisitions which have been initiated under the provisions of the LA Act, 1894 only. Subject to compliance of the conditions mentioned under sub-section (2) of Section 24, the land owner would be entitled to the deeming provision regarding lapse of acquisition and not otherwise.
The Karnataka Housing Board and another vs The State of Karnataka and others. Writ Appeal 5712/2012 decided on 1 December 2020. Justice B.V. Nagaratha and Justice N.S. Sanjay Gowda.
Relevant paragraphs: 20. Before proceeding to answer the points for consideration, the pertinent point that would arise for consideration in this appeal is, whether sanction under the provisions of sub-section (2) of Section 24 of the Act for execution of a housing scheme, land development scheme or labour housing scheme is a mandatory requirement or not has to be answered. Before venturing to answer the said point, it would be useful to deal with the scheme of the Act
25. A cumulative reading of the aforesaid provisions would indicate that it is the duty of the Housing Board to undertake housing schemes and land development schemes as it may consider necessary from time to time and as may be entrusted to it by the State Government. What has to be provided for in a housing scheme is stated in Sections 18 and 18-A of the Act which would include, inter alia, the acquisition of property by purchase, exchange or otherwise i.e., by way of acquisition of any property necessary for or affected by the execution of the scheme. Under Section 19 of the Act before the first day of December in each year, the Board has to prepare and forward, inter alia, a programme and a budget for the next year and the programme shall contain the particulars of the housing schemes, land developments schemes and labour housing schemes which the Board proposes to execute whether in part or whole during the next year as may be prescribed and such other particulars as may be prescribed. The State Government may sanction the programme, the budget and the schedule of the staff of officers and servants forwarded to it with such modifications as it deems fit. The State Government has to then publish the programmes sanctioned by it under Section 20 in the Official Gazette. A supplementary programme and budget may also be sought by the Board and the State Government may sanction such a supplementary programme. The Board can vary any programme or any part of it, even after the sanction made by the State Government, provided that no such variation shall be made if it involves an expenditure in excess of 20% of the amount as originally sanctioned for execution of any housing scheme or land development scheme included in such programme or affects its scope or purpose.
28. In this regard, it is necessary to emphasize the expressions ‘the Board shall not execute’ and ‘unless the same has been sanctioned by the State Government’ which mean that no housing scheme, land development scheme and labour housing scheme can be executed, unless it has received the sanction of the State Government. The object and purpose of insertion of sub-section (2) to Section 24 are not for to seek, the same being to ensure that the State Government is made aware of which one of the housing schemes, land development schemes or labour housing schemes, included in the programme, which has been sanctioned under Section 20 of the Act would be executed and further, where such a scheme involves acquisition of land, the State Government is appraised of the said fact also, as it has to make available the budget for the purpose of paying compensation to the land owners, where the land is sought to be acquired for execution of the housing schemes, land development schemes or labour housing schemes.
31. The decision of the Board to execute a particular housing scheme, land development scheme or labour housing scheme must therefore be brought to the knowledge of the State Government particularly when it entails acquisition of land. This is because the State Government has to make budgetary allocation and find source of funds to pay compensation to the land losers, if the Housing Board intends to execute any such scheme on the land belonging to private land owners. Therefore, the use of the words “shall not execute” and the words “unless the same has been sanctioned by the State Government” have been intentionally used by the State Legislature so as to make it a mandatory requirement.
45. In the circumstances, we are of the view that the sanction of a scheme by the State Government under sub-section (2) of Section 24 of the Act is a condition precedent and a mandatory requirement before the Housing Board would execute any housing scheme, land development scheme or labour housing scheme. This is irrespective of whether any housing scheme would entail acquisition of land or not as opposed to a scheme entrusted by the Board under Section 32 of the Act.
Cases referred – W.A.No.245/2006 (S-PRO), disposed of on 31st July 2006, P. Srinivas Vs. M. Radhakrishna Murthy and others reported in (2004) 2 SCC 459, Suresh Chandra Jha vs. State of Bihar and others reported in (2007) 1 SCC 405, Chairman, Puri Gramya Bank v. Ananda Chandra Das in 1994 (6) SCC 301, Dharmendra Prasad and Others Vs. Sunil Kumar and Others reported in (2020) 2 SCC146.
Relevant paragraph: 16.The above decisions clearly establish that what is important and the touchstone to determine the seniority is the selection list, which is based on merit and not the date of joining. …Thus, the fact of issuance of appointment letter to respondent No.3 subsequent to issuance of the same to the appellant and respondent No.3 joining later than the appellant into service of respondent No.2– KIMS, does not alter his seniority over the appellant as the touch stone should be the “Merit List” and not the fortuitous circumstances, which in out opinion is the result of a motivated action and not bona fide. Under the given facts and circumstances of the case, both the appellant and respondent No.3 have been selected in the same list and respondent No.3 is more meritorious than the appellant and thus, he needs to be placed above the appellant.
The Commercial Courts Act, 2015 (‘the Act’) was promulgated with an intention to provide for speedy disposal of high value commercial disputes involving complex facts and questions of law and to create a positive image to investors about the independence and responsiveness of the Indian legal system[1]. The Act provided for constitution of Commercial Courts and designation of Commercial Appellate Courts or Commercial Division of High Court to deal with appeals arising from Commercial Courts.
Detailed amendments were made to the Civil Procedure Code, 1908 (‘CPC’) insofar as it applies to a commercial dispute including provisions limiting the period for filing of written statement, provisions for disclosure and discovery of documents, Case Management hearing to resolve all pending issues such as framing of issues, providing for list of dates for completion of various stages of the Trial etc, filing of written arguments etc. The procedure for filing of evidence affidavits, restricting the scope of cross-examination, day to day trial are meant to expedite the disposal of commercial disputes. Any judgment or decree passed in a Commercial Dispute is made appealable under Section 13.
This article explores the provisions of the Commercial Courts Act, 2015 to examine whether the intention of the Act to provide for speedy disposal is achieved insofar as it applies to Commercial Appeals.
In order to ensure a speedy disposal of appeals, the Legislature provided for the following:
Designating specific courts as Commercial Appellate Courts or creating Commercial Division of High Court so that judges having experience in commercial disputes would adjudicate the appeals.
reduce the period of appeal from 90 days as provided in the Limitation Act to 60 days in terms of Section 13(3) of the Act.
Section 14 which provided that the Appellate Court shall endeavour dispose the appeal within a period of 60 days from the date of filing.
Commercial Appeals under Section 13 of the Act would be governed by the procedure provided under Section 96 read with Order XLI CPC. Interestingly, the endeavour under Section 14 to dispose the appeal within 60 days is reflected in Order 41 Rule 11-A of CPC. A suggestion was made to include a proviso that the Court must give reasons if it is unable to dispose the appeal within 60 days akin to TDSAT which was not heeded. Given the huge pendency of matters, designating a specific court to hear commercial appeals is an excellent idea but the overburdening of courts with regular matters has ensured that the Commercial Appellate Courts or Commercial Divisions of High Court also deal with other roster matters. The appeals are listed along with those matters thus ensuring that the statutory intent is reduced to dust.
Additionally, appeals involve a series of other miscellaneous matters such as interim applications for stay of execution of decree, furnishing of security if necessary, applications for additional evidence, filing of paper books (which is governed by the procedure of the respective High Courts). There is a possibility that issuance of court notice to the other side would take a few weeks and the matter is listed thereafter. If sufficient process fee is not paid, then notice is not sent and the matter has to be listed again for issuance of notice.
In fact, many High Courts provide for 30 to 60 days’ time to comply with office objections which is applicable to every filing including a Commercial Appeal. The non-compliance with office objections is first listed before Registrar / Court Master and later on before Court and opportunities are granted to comply with the objections. In fact, Order XLI Rule 19 CPC itself provides for readmission of appeal if it is dismissed for any default.
When Courts have failed to achieve the mandate provided for in Order 41 Rule 11-A for disposal of appeals within 60 days, compliance of Section 14 of the Act is unlikely. Therefore, the Act has failed to deliver on the promise of an expedited disposal of the commercial dispute. Even if the Commercial Court passes a judgment in terms of the Act, there are no special procedures contemplated for disposal of appeals under the Act.
This article recommends certain measures which can be considered by High Courts to be issued as Practice Directions under Section 18 of the Act or by framing appropriate Rules under the High Court Act or Letters Patent Rules.
First measure would be for compulsory issuance of notice to the other side before filing of the appeal. This would be akin to the amendment made to the Arbitration and Conciliation Act, 1996 under which Section 34 (5) was inserted which requires that an application under Section 34 for setting aside the arbitral award be filed only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. This would save considerable time in issuance of notices to the other side.
Second measure would be to ensure that the Commercial Appellate Court becomes a paperless court. This means that all the Trial Court records must be scanned and cross-referenced. The High Court can frame guidelines for hyperlinking (online equivalent of Post-It) and indexing of the records such that it is as easily accessible as a piece of paper. The instructing counsel / arguing counsel should be able to point at a relevant portion and it gets highlighted for all persons in Court. Software of this nature exists and is in use in the United States and United Kingdom. One would have noticed situations wherein paper books are not numbered properly resulting in wastage of time in identifying the appropriate page delaying the hearing and hampering the flow of arguments. Imagine if one can hyperlink or provide an e-index such that one can refer to one document in a separate window while reading from another document.
Third measure would be to have a two-tier case management hearing. In the first case management hearing, direct the Appellant to file written arguments and Respondent to file reply written arguments within stipulated periods. The written arguments must hyperlink the relevant exhibit / pleading for ease of reference. Both parties must also thereafter file their draft points for determination based on the written arguments. They must also make a list of all preliminary / interlocutory matters which they want the Court to adjudicate on such as stay of execution of decree, furnishing security, additional evidence and other miscellaneous matters. Parties must be directed to have a conference to discuss amongst themselves to arrive at consensus on these matters. This can be hearing before the Registrar / Court Master wherein a standard template order can be furnished providing a date for hearing.
The Court will have all the information in two lists: (i) containing all interlocutory matters on which parties want a decision as they have been unable to arrive at an understanding; (ii) Points for determination as per both parties. On the date fixed for the second case management hearing, the Court will decide on the following: (i) All interlocutory matters including stay of execution of decree, furnishing security, additional evidence and other miscellaneous matters; (ii) Arrive at the points for controversy and develop the points for determination in consultation with counsel so as to avoid adjudication on unnecessary aspects. This will be an order of the Court which will be incorporated into the final judgment that the Court will pass.
Fourth measure would be to specify a day in a week wherein an afternoon is spared for hearing of commercial appeals having an advance list on the basis of the case management hearing dates. Even for preparation of this list, consent letters from both counsel indicating their list of favourable dates may be taken at the case management hearing stage.
As written arguments are already filed, the Court will be familiar with the issues involved and the oral arguments can be cut short or a time be fixed for completing oral submissions. This is followed even by the US Supreme Court and host of other Courts across the world and is not considered as impinging the access to justice.
Ultimately, the intention of the parties and the Courts collectively will result in an expedited disposal of the Commercial Appeal no matter whatever law or practice direction is issued. The measures suggested in this article are used throughout the world in some form or another. While incorporating some of the best trial practices for adjudication of a commercial suit, the legislature has failed to show the same effort while framing provisions for Commercial Appeals resulting in an undelivered promise of speedy disposal. One can only hope that the High Courts take the matters into their own hands to fulfil the legislative mandate.
(Ajay J Nandalike is an Advocate practicing in the High Court of Karnataka. He thanks Mr. Sumit Rai, Advocate, Bombay High Court for his inputs and Ms. Drishya Shetty, Law Student, 5th Year Christ University, Bengaluru for her research).
[1] See Statement of Objections and Reasons, Commercial Courts Act, 2015
Public Interest Litigation by S.Basavaraj, Advocate and Member, Karnataka State Bar Council challenges establishment of caste based Corporations and bodies. The bodies whose establishment are challenged are.
1. Karnataka Maratha Development Authority, c/o Backward Classes Welfare department, VidhanaSoudha, Dr. Ambedkar Road, Bangalore 560001
4. KARNATAKA VISHWAKARMACOMMUNITIES DEVELOPMENT CORPORATION LIMITED, 4th floor, DevarajUrs Bhavan 16/d, Miller Tank Bed Area, Vasanthanagar, Bangalore 560052
5.Karnataka State CHRISTIAN DEVELOPMENT BOARD, Karnataka Minorities Development Corporation Ltd, ‘Vishveswarayya Centre’, 12thFloor, Main Tower, Dr Ambedkar Rd, Ambedkar Veedhi, Vasanth Nagar, Bengaluru, Karnataka 560001
6. KARNATAKA BRAHMIN DEVELOPMENT BOARD, No.1 4/3, Annexe Building, 3rd floor, Sri Aravinda Bhavan, Mythic Society, Bengaluru- 560001
7. Karnataka Kadugolla Development Authority c/o Backward Classes Welfare department, VidhanaSoudha, Dr. Ambedkar Road, Bangalore 560001
The interim prayer seeks a direction to the State Government to submit details of all caste based bodies established in the State of Karnataka and the financial contribution made to them.
Daksha Legal 