Pranav Bajpe and others vs The State of Karnataka and others. Writ Petition 27761/2019 and connected matters decided on 9 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352798/1/WP27761-19-09-12-2020.pdf

Relevant paragraphs: Challenge is to Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 made under The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 insofar as it inserts the words ‘and includes persons of Indian origin and overseas citizen of India’ in the definition of “Non-resident Indian” as being repugnant to the provisions of the Citizenship Act, 1955.

16. Single Judge (Justice Krishna Dixit) conclusions:

(i) On the question whether the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act is repugnant to 2009 Notification of Central Government, learned Single Judge considered the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act in light of Central Government Notification dated 05/01/2009 and the earlier Notification dated 11/04/2005 and held that a OCI Cardholder cannot be equated to a Non-Resident Indian in the matter of admission to professional colleges by an interpretation of the aforesaid two Notifications.

(ii) On the question whether impugned Section 2(1)(n) of 2006 Act is unconstitutional because of lack of legislative competence of the State Legislature, the  learned Single Judge analysed Section 7A and 7B of the Citizenship Act and held that the he Notification of 2005 and 2009 impugned Section 2(1)(n) and 2(1)(l) of 2006 Act and Rule 5 of 2006 Rules and therefore were not enforceable.

(iii) Section 7B(1) of Citizenship Act deals with OCI card holders who are not citizens of India. That Section 7B(1) of the Citizenship Act delegates power for issuance of Notifications granting rights to OCI card holders. That the said legislation is traceable to Entry-17 of List-I of VII Schedule of the Constitution which deals with “Citizenship, Naturalization and Aliens”. Therefore, on the strength of the said entry in List-I, the Central Government is empowered to grant various rights to OCI card holders including educational rights. When such rights are granted in the matter of education to OCI card holders, the State Legislature has no competence to legislate on the specific educational rights granted by the Central Government by a Notification issued under Section 7B of Citizenship Act. Therefore, any amendment made to the Karnataka Act and Rules restricting the rights granted to the OCI card holders in the matter of education would be repugnant as the doctrine of ‘occupied field’ would apply under Article 254 of the Constitution.

(iv) On the question whether Rule 5 of 2006 Rules prescribing ‘citizenship’ as a condition for availing Government seats is unenforceable against OCI card holder is concerned, the learned Single Judge referred to Rule 5 of 2006 Rules which prescribes that Indian Citizenship is a sine qua non for any student to lay claim for ‘Government Seats’ which is defined under Rule 2(1)(l) of 2006 Rules, would mean that the rights granted under 2009 Notification under Section 7B(1) of the Citizenship Act would be defeated.

(v) Also, the rights that are available under 2005 Notification and further under 2009 Notification issued by the Central Government under Section 7B(1) of Citizenship Act cannot be diminished or nullified by Rule 5 of the 2006 Rules. There is repugnance between Rule 5 of 2006 Rules with the Notifications of 2005 and 2009. Therefore, Rule 5 cannot be enforced against OCI cardholders, that it can be enforced against other foreigners who are not in any case, the petitioners. This is because Rule 5 of 2006 Rules is relatable to Entry 25 of List-III which deals with the subject-education which is in the Concurrent List and the principles of repugnancy under Article 254 of the Constitution would apply.

(vi) On the question whether the OCI cardholders are Indian citizens, learned Single Judge held that they are all ‘foreigners’, to mean a person who is not a citizen of India, as per the definition under Section 2(a) of the Foreigners Act, 1946.

(vii) On the stand of the Central Government as to educational rights to OCI cardholders, reference was made to memo dated 18/03/2019, submitted on behalf of the Central Government and learned Single Judge observed that the said clarification is in conflict with the interpretation of Notification of 2005 and 2009. That on the one hand, the Notification of Central Government granting educational rights to OCI cardholders and the conference of such rights, cannot be made illusory by the State enactment or Rule. The State law cannot take away the rights granted by the Central Government to the OCI cardholders under Section 7B of the Citizenship Act through the Notification of 2005 and 2009. According to the learned Single Judge, the expression “in pursuance of the provisions contained in the relevant Acts” in paragraph “b” of the 2009 Notification cannot be construed to mean State law which has the effect of curtailing the effect of the rights granted to the OCI cardholders by the Central Government.

49. The Notifications issued by the Central Government under Section 7B of the Citizenship Act, is a statute enacted by the Parliament, while the State law is under Entry 25 of List III of the Concurrent List, which deals on the subject ‘education’.

60. In view of the aforesaid discussion, the expression “citizen” in Rule 5 of 2006 Rules and the expression “Non-Resident Indian” to include OCI cardholders under 2006 Act, both of the State Government, in juxtaposition with Central Government Notifications of 11/04/2005 and 05/01/2009 in the matter of eligibility of OCI cardholders to appear for All-India Pre- Medical Test and to make them eligible for admission in pursuance of the provisions contained in relevant Acts (State Acts) i.e., Medical, Dental, Engineering and such other courses, would have to be considered.

71. …The petitioners in the instant case are all OCI Cardholders who were minors at the time of filing the petitions. Such of those minor OCI Cardholders who are born subsequent to 10/12/1992 to either of whose parents who was a citizen of India at the time of their birth, are conferred citizenship of India by descent. This is evident on a  reading  of Section 4(1)(b) read with Section 4(1A) of the Citizenship Act, as a minor who is a citizen of India by virtue of Section 4(1)(b) by descent and is also a citizen of any other country, such as OCI Cardholder as per Section 7A(1)(c), shall cease to be a citizen of India if he either renounces his citizenship on attaining full age or even if he does not renounce his citizenship or nationality of another country within six months of attaining the full age. Therefore, the status of minor children of citizens of India is protected by an amendment made to Section 4 of the Citizenship Act by insertion of Section 4(1A).

HELD: (i) …Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian” is quashed;

(ii) The impugned Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006, to the extent it prescribes Indian Citizenship, is interpreted so as to include within the scope of the expression ‘Citizen’,OCI Cardholders as per Section 4 of the Citizenship Act and as per Notification dated 05/01/2009 issued under Section 7B of the said Act;

(iii) The writ of Mandamus issued by the learned Single Judge directing the Respondent-State and the Respondent-Karnataka Examinations Authority to permit the petitioners (as per their choice) to register for CET-2019 as per the Notification dated 31/01/2019 issued by the Respondent-Karnataka Examinations Authority is confirmed. Further, the aforesaid Authority is directed to permit their participation in the ensuing counseling of CET- 2020 or subsequent years, for selection and allotment of seats in BE/B.Tech/B.Arch., or such other professional courses in  Government Colleges, Private Aided/Un-aided Colleges/ educational institutions for the Academic Year 2019-2020 on the basis of their relative merit and ranking in the imminent CET-2020 or subsequent years;

(iv)Insofar as MBBS/BDS courses are concerned, NEET Scheme shall apply for the Academic Years 2019- 20 as well as 2020-21 and a writ of mandamus is issued directing the respondent-State and respondent-Karnataka Examinations Authority to permit the petitioners and similarly situate candidates i.e., OCI Cardholders to register and to participate in the ensuing counseling being held for selection and allotment of seats for the Academic Year 2020-21 and subsequent years, on the basis of their relative merit and ranking;

(v) The Respondent-Government and the Respondent- Karnataka Examinations Authority shall take all steps as are necessary to facilitate and effectuate the aforesaid directions, forthwith and without brooking any delay in the matter, keeping in view CET-2020 or subsequent years.

Compiled by S. Basavaraj Daksha Legal.

Dyani Antony Paul and others vs Union of India and another. Writ Petition 38642/2016 and connected matters decided on 11 December 2020.

Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352800/1/WP38642-16-11-12-2020.pdf

8(4) Where the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17, in such manner as may be prescribed:

Provided that if it is not practicable to take possession of a property frozen under sub-section (1-A) of Section 17, the order of confiscation shall have the same effect as if the property had been taken possession of.

Relevant paragraphs: 30. Having heard the learned Advocates appearing for parties, I am of the considered view that following points would arise for my consideration:

(i) Whether sub-section (4) of Section 8 of PML Act is violative of Article 14 and Article 300A of the Constitution of India and as such proceedings initiated against petitioners under PML Act are liable to be quashed?

(ii) Whether the proceedings initiated under the PML Act by the authorities would be bad in law or without jurisdiction for want of existence of predicate offence or offence prescribed under the Schedule to the PML Act not being in existence on the date of initiation of proceedings under PML Act? OR Whether the offence of money laundering under Section 3 of PML Act is a stand alone offence?

(iii) Whether the proceedings initiated by the authorities under PML Act and passing orders of provisional attachment and its confirmation thereof is liable to be set aside or quashed on account of any procedural lapse prescribed under Sections 5 and 8 of PML Act?

(iv) Whether the notice/s issued by the authorities to take possession of the property on provisional order of attachment being confirmed is liable to be set aside?

(v) Whether writ petitions are liable to be dismissed on the ground of petitioners having not availed the alternate remedy of appeal available under Section 25 and under Section 42 of PML Act?

42. A construction which reduces the statute to a futility has to be avoided. The principle expressed in the maxim ut res magis valeat quam pereat i.e., liberal construction should be put upon written instruments so as to uphold them, if possible and carry into effect the intention  of  parties  has  to  be  adopted.  (See  Broom’s  Legal Maxims 10th Edition, page 361, Craies on Statutes (7th edition), page 95 and Maxwell on Statutes (11th edition) page 221. ) A statute or a provision in any enactment must be so construed to make it effective and operative. The Hon’ble  Apex  Court  in  the  case  of  CIT  vs  S.TEJA  SINGH reported in AIR 1959 SC 352, have held that a statute is designed to be workable and interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable. It has been further held that courts will have to reject that construction which will defeat the plain intention of the legislature, even though there may be some inexactitude in the language used in the enactment.

44. Time  and  again,  Hon’ble  Apex  Court  in  catena of judgments has held that whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute.

54. Section 8 as amended by the Amendment  Act  2 of 2013 cannot be said to be arbitrary or violative of fundamental right of a person, even if the proceedings are continued for trial of scheduled offence resulting in acquittal and the alleged proceeds of crime pertained to that scheduled crime. It is to be further noticed that mandate of sub-section (4) of Section 8 to the authorities is to take possession of the property forthwith which is attached under Section 5 or frozen under sub-section (1-A) of Section 17 on the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed  under sub-section (3). The authorities have no discretion at all and they are bound to take possession and the expression “possession” referred to in sub-section (4) refers to    physical    possession.  The judgment of the KAMARUNNISA’s   case   relied    upon   by   petitioners   was rendered on 11.07.2012 i.e., pre 2013 amendment i.e., prior to Act 2 of 2013 coming into force. The amendment which was brought to sub-section (4) of Section 8 namely, the expression “possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17 in such manner as may be prescribed”  was not found in sub-section (4) as it stood in the year 2009. Hence, the judgment of KAMARUNNISA would not come to rescue of the petitioners.

82. In the light of aforestated  analysis,  this Court is of the considered view that existence of a predicate offence for initiation of proceedings under the PML Act is not a condition precedent or in other words, the offence under Section 3 of the PML Act is a stand alone offence. Hence, the presence of a schedule offence as prescribed under the PML Act would not be condition precedent for proceeding against such person under the PML Act.

99. The expression “proceeds of crime” covers any property derived or obtained directly or indirectly by any person, as a result of criminal activity, related to a scheduled offence or the value of such property. The expression ‘property’ is elucidated in Clause (v) of Section 2, as any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. Section 2(u), therefore, does  not  envisage  either mens rea or knowledge that the property acquired is a result of criminal activity.

107. Hence, this Court is of the considered view that contentions raised by the petitioners to quash the proceedings on the ground of the proceedings initiated against them is without jurisdiction for want of either there being no predicate offence or on the date of launch of proceedings under the PML Act, the predicate offence referred to in the schedule was not incorporated in the schedule and as such, there would be retrospective application of law cannot be accepted, inasmuch as, the offence of money laundering as indicated under  Section 3 of PML Act is a stand-alone offence. It is to be further noticed that the proceedings initiated by the authorities by passing an order of provisional attachment and its confirmation thereof would not fail or lapse on account of any procedural irregularity for the reasons indicated herein above.

Compiled by S. Basavaraj Daksha Legal.

Srinidhi Finance and Investment Corporation vs Basavanthappa. Criminal Appeal 2828/2011 decided on 23 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352719/1/CRLA2828-11-23-11-2020.pdf

Relevant paragraphs: 21 & 22 In the present case, cheque has been issued by the accused in the name of Siddalingappa Tippanna Satyappanavar, who is ‘payee’. Holder in due course of the cheque is none other than the ‘payee’- Siddalingappa Tippanna Satyappanavar.

24. Proviso (b) to Section 138 of NI Act states that ‘the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque (within thirty days), of the receipt of information by him from the bank regarding the return of the cheque as unpaid.’

27. As noticed in Ex.P.1 and in Ex.P.3 and in the complaint filed by the complainant, it is not in dispute that the payee and holder in due course of the cheque is one Sri. Siddalingappa Tippanna Satyappanavar. The legal notice got issued by complainant-Ex.P.3 is not by the payee or holder in due course but by the complainant-Partnership Firm. The complaint filed before the learned Magistrate is also not by the payee or holder in due course but by the partnership firm M/s. Srinidhi Finance and Investment Corporation, Gadag, by its Managing Partner Sri. Siddalingappa Tippanna Satyappanavar. As stated earlier Section 142(1)(a) clearly states that no Court shall take cognizance of any offence punishable under Section 138 of NI Act, except on a complaint, in writing made by the ‘payee’ or, as the case  may be, the holder in due course of the cheque. At the cost of repetition, it is seen that the payee and holder in due course of the cheque is not the complainant in the present case. Therefore, the primary mandatory requirement of Section 138 of NI Act, has not been fulfilled by the complainant herein. Therefore, the initiation of the complaint itself is not in accordance with law.

34. Admittedly, in the present case, cheque has not been issued in the name of partnership firm. It is also  not the case of the complainant that it is a proprietary firm which stands on different footing. Therefore, it is clearly, evident from the factual aspect that the complainant firm is not the payee or the holder in due course.

Appeal dismissed.

Compiled by S. Basavaraj, Daksha Legal.

Irfan Ali vs The State of Karnataka. Criminal Petition 101431/2020 decided on 8 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352702/1/CRLP101431-20-08-12-2020.pdf

Relevant paragraphs: 6. The learned counsel for petitioner has relied on a decision of this Court rendered in Criminal Petition No.1142/1991, in the case of Shankar Krishnasa Habib and Another Vs. State of Karnataka, decided on 16.09.1991. Relevant portion of para 11 of the said decision is extracted hereunder:

“11. ….. There is no explanation in the complaint or from the statements of other witnesses whether the house which was raided by the police on the date in question consisted of only these two persons or also the other members of the family. When  prosecution says that the ganja was seized from the house of the petitioners, it could also have explained that who were in possession of ganja, whether these two petitioners or other persons who were staying in the house. Since all these questions are of doubtful in nature and whose correctness or veracity can be ascertained only when regular evidence is led in, I think this Court can hold at this stage what prosecution has not made out a case so as to connect the petitioners that they were in exclusive possession of ganja seized on 31.07.1991. Hence, the first ingredient of Section 30(b)(c) has been explained.”

7. The facts of the case in the above decision has some similarity to the facts of the present case. Bail granted.

Compiled by S. Basavaraj. Daksha Legal.

The Karnataka High ordered emergent notice to the State Government on a public interest litigation filed by S. Basavaraj, Advocate and Member, Karnataka State Bar Council. The contention of the petitioner has been that caste based Boards are not traceable to any plenary legislation or constitutional provision.

After hearing the petitioner,the Division Bench consisting of Chief Justice Abhay S. Oka and Justice Vishwajeet Shetty ordered issuance of emergent notice to State Government.

On the interim prayer, the Division Bench opined that since the Board itself is not yet established, any action taken by the State Government will be subject to the result of the writ petition. The matter is adjourned to 4 January 2021 with direction to the Government to file counter without seeking any adjournment.

Mauna vs K.G.Mahesh Murthy. Criminal Petition 101295/2017 decided on 26 November 2020. Justice H.B. Prabhakara Sastry

Judgment Link: Microsoft Word – CRL.P. No.101295.2017.doc (kar.nic.in)

Relevant paragraphs: It is …the case of the complainant in the trial Court that the petitioner herein in her cross- examination in the complaint filed by her under D.V.  Act, made a statement that her father through her friends secured liquor for the consumption of the complainant, the present respondent. She admitted that Ex.P.68 is with respect to purchase made in a Military Canteen.

10. Admittedly in the instant case, the present petitioner as accused in the trial Court has made a statement. Though the learned counsel submits that the said statement does not amount to publication, but, without much discussion on that, it can be held that when it is a Court proceeding and there is nothing on record to show that it was an in-camera proceeding where none else except the party making statement, the Presiding Officer and the learned counsels were there, it cannot be said that there was no publication of the said statement.

Compiled by S. Basavaraj and Kriti Taggarse Daksha Legal.

Pricewaterhouse Coopers Service vs Mohan Kumar Thakur. Miscellaneous First Appeal 8750/2019 decided on 5 November 2020. Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351911/1/MFA8750-19-05-11-2020.pdf

Relevant paragraphs: 18. Whether a defendant would lose the right to seek for reference of the  parties to arbitration, if the application for referring the parties to arbitration under Section 8 of the Act, is filed  along with the written statement?

22 & 23. A plain reading of the provision  (Section 8) would indicate that a party to an arbitration agreement is entitled to seek for a reference to arbitration if the other party to the agreement has brought an action before a judicial authority in respect of a matter which is the subject of   an arbitration agreement. This entitlement is however subject to two riders: Firstly, that the party applies for reference before  he files his first statement of defence on the substance of the dispute and Secondly, that the application for reference should be accompanied by the original arbitration  agreement or a certified copy of the arbitration agreement.

23. The intent behind this provision is manifestly clear, which is, to ensure that once an agreement has been entered into which provides for resolution of any dispute that may arise between the parties during the working of the contract, the parties to the agreement, should seek for resolution of that dispute only through the medium of arbitration, a mode which they had voluntarily agreed to resort to at the time of entering into the agreement.

29. Thus, the key ingredient to be examined while considering whether an application for referring the parties to arbitration under Section 8 of the Act is to be granted is to determine whether the defendant had unequivocally submitted to the jurisdiction of the judicial authority before whom an action has been  brought,  which in our country, would be the Civil Court before whom a suit has been filed by a party to an arbitration agreement.

33. The Apex Court in the case of Rashtriya Ispat Nigam Limited and Another Vs. Verma Transport Company – (2006) 7 SCC 275 has observed at paragraphs 36 and 42 as under:

“36. The expression “first statement on the substance of the dispute” contained in Section 8(1) of the 1996 Act must be contradistinguished with the expression “written statement”. It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable. We would deal with this question in some detail, a little later.

Waiver of a right on the part of a defendant to the lis must be gathered from the fact situation obtaining in each case. In the instant case, the court had already passed an ad interim ex parte injunction. The appellants were bound to respond to the notice issued by the Court. While doing so, they raised a specific plea of bar of the suit in view of the existence of an arbitration agreement. Having regard to the provisions of the Act, they had, thus, shown their unequivocal intention to question the maintainability of the suit on the aforementioned ground.

34. What is discernable from the above decision is that  a Court before which an application under Section  8 of the Act is made will have to record a finding as to  whether the defendant had waived his right or acquiesced to the jurisdiction of the Court and  this  waiver of the right to seek for reference to arbitration must be gathered from the fact situation obtaining in  each case.

36..……even if a party submits his written statement and  thereafter,  seeks for reference and the same is not objected to by  the other side, the Apex Court has held that there would be no bar on the Court to refer the parties to arbitration. This clearly leads to the conclusion that a Court is required to give effect to the intent of the  parties to resort to the mode of resolving their disputes in the manner that they had originally agreed to.

38. ……what is to be considered while determining an application under Section 8 of the Act is as to whether the defendant has exhibited his intention to submit himself to the jurisdiction of the Court and has waived his right to seek for reference to arbitration.

40. ….. a party to the arbitration agreement should have indicated his clear intention to submit to the jurisdiction  of the Civil Court and should have expressly waived his right to seek for reference to arbitration and only if such  a situation existed, the judicial authority could reject the request for reference to arbitration.

45. It is in this background that the act of defendant filing its written statement is required to be viewed and not in isolation. The fact that the defendant expressly indicated that it was not submitting to the jurisdiction of the Court was manifestly evident by the act of defendant filing an application under Section 8 of the Act along with the written statement. The filing of application under Section 8 of the Act at the  very outset also makes it  clear that the defendant was not waiving its right to seek for reference to arbitration.

46.If, however, the defendant had filed its written statement and had participated in the proceedings and had then made an application seeking for reference,  then, an argument could have been advanced that the defendant had waived its right to seek for reference to arbitration.

48. We are of the view that the term ‘not later than’ used in Section 8 (1) of the Act permits the filing of an application seeking for reference of the parties along the written statement and the filing of the written statement and application for reference under Section 8 simultaneously cannot and should not lead to  an inference that the defendant had submitted to the jurisdiction of the Civil Court and had waived its right to seek for reference to arbitration as provided under  Section 8 of the Act.

Appeal allowed.

Compiled by S. Basavaraj, Daksha Legal.

Narayanaswamy vs The District Commissioner and others. Writ Appeal 3855/2019 decided on 6 November 2020. Chief Justice Abhay S Oka and Justice S.R. Krishna Kumar.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf

Relevant paragraphs. 10. …….the proceedings under Sections 4 and 5 of the PTCL Act having been originally initiated by the appellant and the sixth respondent in the year 2007, the same was dismissed by the Assistant Commissioner. The appeal filed before the Deputy Commissioner was dismissed as withdrawn.pursuant to a memo ….under which, the appellant and the sixth respondent have unconditionally withdrew the appeal. Under these circumstances, having unconditionally withdrawn the appeal as well as the earlier proceedings initiated by them, the appellant and the sixth respondent could not have  initiated the fresh proceedings once again for a second time under Sections 4 and 5 of the PTCL Act on the same set of facts and on the same cause of action in respect of the same subject matter, i.e., the schedule property.

11. In view of the aforesaid undisputed facts and circumstances, we are of the view that once the proceedings under Sections 4 and 5 of the PTCL Act are filed/initiated   and the same are either withdrawn or dismissed on merits, a fresh petition/second petition on the same cause of action  and the same subject matter under Sections 4 and 5 of the PTCL Act is not maintainable and the same is liable to be dismissed on this ground alone. The second petition is  clearly barred by the principles of estoppel, acquiescence, abandonment and waiver. Accordingly, though a finding in this regard has not been recorded by either the learned Single Judge or the authorities, having regard to the undisputed material on record, a second petition under Sections 4 and 5 of the PTCL Act would not be maintainable and the same is liable to be rejected on this ground alone.

Compiled by S. Basavaraj, Daksha Legal.

Narayanaswamy vs The District Commissioner and others. Writ Appeal 3855/2019 decided on 6 November 2020. Chief Justice Abhay S Oka and Justice S.R. Krishna Kumar.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf

Relevant paragraphs. Judgments in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy (2003) 7 SCC 667, Situ Sahu & Others vs. State of Jharkahnd & Others (2004) 8 SCC 340, Joint  Collector  Ranga Reddy District & another vs. D.Narsing Rao & Others (2015) 3 SCC 695, Chhedi Lal Yadav & Others vs. Hari  Kishore  Yadav (dead) through L.Rs. & Others  (2018) 12 SCC 527, Nikkanti Rama Laxmi vs. State of Karnataka & Another 2017 SCC Online SC 1862, Vivek M. Hinduja & Others vs. M.Ashwatha & Others 2017 SCC online SC 1858 referred to.

17. It is relevant to state that the aforesaid judgments were not rendered with reference to the provisions and proceedings of the PTCL Act. However, in the case of Nikkanti Rama Laxmi vs. State of Karnataka & Another 2017 SCC Online SC 1862, the Apex Court applied the well settled principles governing the initiation of proceedings after an unreasonably long period to the proceedings under the PTCL Act and consequently held as under:-

9. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application  for  having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does  it  prescribe   the   period   within   which suo  motu action  may  be  taken.  This  Court  in  the  case  of Chhedi Lal Yadav v. Hari Kishore Yadav (D) Thr.  Lrs.,   2017  (6)  SCALE  459  and  also  in  the  case   of Ningappa v. Dy. Commissioner (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a  period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers  which were sold for arrears of rent or from which they were ejected for arrears of land from 1^st January, 1939 to 31^st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years  and was allowed.  It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka  High   Court,   namely, R. Rudrappa v.Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa v. State of Karnataka, 2006 (4) Karnataka Law  Journal,  303 and G. Maregouda v. The Deputy Commissioner, Chitradurga District, Chitradurga, 2000 (2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled.

18. Subsequently, the aforesaid Judgment in the case of Chhedi Lal Yadav’s case and Nekkanti Rama  Lakshmi’s case were followed and reaffirmed  by  the Hon’ble Supreme Court in the case of Vivek M. Hinduja & Others vs. M.Ashwatha & Others, 2017 SCC online SC 1858which is held as under:-

4. Arguments have been addressed before us at length on whether the present appellants had perfected their titles on the date of the coming into force of the Karnataka Act. We are not inclined to go into this question because the instant matters can be decided on an aspect settled by this Court in the case of Chhedi Lal Yadav v. Hari Kishore Yadav (D) Thr. Lrs., and Nekkanti Rama Lakshmi v. State of Karnataka. In these two decisions, one of which arose under the Karnataka Act, this Court has held that the authorities entrusted with the power to annul proceedings purported to have been made by the original grantees, must exercise their powers to do so, whether on an application, or suo motu, within a reasonable time since no time is prescribed by law for taking such action. In the decided cases, action had been initiated after about 20 to 25 years of the coming into force of the Karnataka Act.

In the present cases, it is undisputed that the action had been initiated after almost 20 years from the coming into force of the Karnataka Act. In principle, we do not see any reason why the delay in the present cases should be considered to be reasonable. There is no material difference between the period of delay in the present cases and he decided cases.

Relying on some  observations  in  the  case  of Manchegowda v. State of Karnataka (1984) 3 SCC 301 and Sunkara Rajayalakshmi v. State of Karnataka (2009) 12 SCC 193, Shri Sunil Fernandes, learned counsel on the respondents’ side submitted that the outer limit for initiating action should be 30 years.

We, however, find that the observations in those cases are not apposite and are made with reference to the period of prescription in respect of Government properties under the Limitation Act, 1963. It was also submitted on behalf of the respondents  that  Section  4 of   the   Karnataka   Act proprio vigore annuls a transfer made in contravention of itself. Therefore, it makes no difference if the proceedings are initiated even after 20 to 25 years. We do not find it possible to accede to this submission. This Court in the case of Board of Trustees of Port of Kandla v. Hargovind Jasra (2013) 3 SCC 182 reiterated the necessity of an order of a competent Court or Tribunal before which the impugned order can be declared as null and void. The Court relied on the oft-quoted passage in Smith v. East Elloe Rural District Council 1956 AC 736: (1956) 2 WLR 888, which reads as under:

“…An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.’ (Smith Case, AC pp.769-70)

This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out(sic) repeatedly in the House of Lords and Privy council without distinction between patent and latent defects (Ed. Wade and Forsyth in Administrative Law, 7th Edn.1994.”

In  the   case   of Pune   Municipal Corporation v. State of Maharashtra (2007) 5 SCC 211, this court reproduced the following observations with regard to the declaration of orders beyond the period of limitation as invalid:

“39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. ‘If the statutory time of limitation expires, the Court cannot give the declaration sought for’.”

We are in respectful agreement with the aforesaid observations. It is, however, necessary to add that where limitation is not prescribed, the party ought to approach the competent Court or authority within reasonable time, beyond which no relief can be granted. As decided earlier, this principle would apply even to suo motu actions.

20. Applying the aforesaid legal position to the facts of the instant case, we are of the considered view that the proceedings initiated by the appellant along with sixth respondent in the year 2015 were not maintainable on account of long, unreasonable and inordinate delay  and lapse of time and that the same were initiated after an unreasonably long period of thirty years after the PTCL Act came into force and about fifty years from the date of alienation.

Compiled by S. Basavaraj, Daksha Legal.

Kashibai vs Hanamavva and others. Writ Petition 148540/2020 decided on 26 November 2020.

Judgement Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351330/1/WP148540-20-26-11-2020.pdf

Relevant paragraphs: 6. The petitioner has filed a suit for partition and separate possession. In the said suit the petitioner has clearly admitted that deceased Nimbavva is the wife of deceased Krishnegowda.  Now, by virtue of proposed amendment, the petitioner wants to withdraw the admission made by her in the

plaint. A categorical admission made in the pleading cannot be permitted to be withdrawn by the parties. In this circumstance, I would like to place reliance on the judgment of the Hon’ble Apex Court in the case of NAGINDAS RAMDAS VS. DALPATRAM ICHHARAM ALIAS BRIJRAM & OTHERS (1974) 1 SCC 242 where it is held as under:

“27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act,  made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”

In view of the law laid down in the above said decision, I am of the considered view that the petitioner cannot be permitted to withdraw the admission made in the pleading. Petition dismissed.

Compiled by S. Basavaraj and Kriti Taggarse, Daksha Legal.