Relevant Paragraphs: 11. The third contention which has been raised by the Insurance Company is that the vehicle did not have a permit to ferry passengers and/or that it did not have a fitness certificate. This contention cannot be raised by the Insurance Company after having issued the insurance policy, if at all the vehicle did not have a fitness certificate, the insurance policy itself ought not to have been issued and if the fitness certificate would expire during the period the insurance policy is in operation, the Insurance Company ought to have restricted the operation of the insurance policy till the time, the fitness was valid. Thus, once the insurance policy has been issued, the Insurance Company cannot deny its liability on the ground that there is no fitness certificate. As regards the aspect of there being no permit, a perusal of the document indicate that there is no evidence, which has been laid by the Insurance Company nor any stand taken in this regard. Hence the said contention cannot be taken up during the course of this appeal. Hence, this contention is also rejected.
Relevant paragraph: 20. Further, the Full Bench of this Court in the case of New India Assurance Company Limited v. Yellavva W/o Yamanappa Dharanakeri and another [2020 (2) AKR 484 was pleased to lay down the guidelines regarding ‘pay and recovery’. It is the law laid down that even in case of Insurance Companies are having regard to Section 149(1) R/w Section 149(7) of the M.V.Act whenever a case falls under Section 149(2)(a) of the M.V.Act and the same is successfully established or proved by the insurer, but, it is the duty of the insurer to satisfy the judgments and awards against person insured in respect of third party risks even in case of infraction is proved as defence taken by the Insurance Companies. Therefore, in the present case also the lorry bearing Reg.No.KA-28/A- 5775 was not having valid fitness certificate as on the date of accident and certainly it can be said that it is an infraction but indisputably the said lorry is insured with the appellant/Insurance Company. Therefore, in view of this the appellant/Insurance Company shall pay first the compensation and satisfy the claim then recover it from the owner of the said lorry.
Relevant paragraphs: 12. When any appointment is made by way of direct recruitment, either by way of competitive examination or selection, the list of candidates should be arranged in the order of merit and they should be selected in that order. It does not contemplate that the candidates belonging to the reserved category should be excluded from the order of merit. Thus, in case where a candidate belongs to the reserved category, performs so well that he finds a place in the general merit category, he has to be placed in the general merit category and another candidate has to be chosen as against the post reserved for that particular category.
13, 14 &15. The reservation is envisaged under the Constitution of India to eradicate the disadvantage suffered by candidates belonging to socially and educationally backward classes. It is permissible for the State, in view of Articles 14, 15, 16 and 38 of the Constitution of India to provide for reservation. The reservations are a mode to achieve equality of opportunity guaranteed under Article 16(1) of the Constitution of India and caste is one of the criteria to determine the social and educational backwardness in our country.The Philosophy is upliftment of that caste group, who are subjected to social discrimination, by providing them reservation. If a candidate amongst them who are so capable to compete with General Merit candidates, he should not be considered under the reserved category, but selected under General Merit category and the benefit of reservation should go to another candidate from the reserved category.
19. The appointment of respondent No.4 has to be considered as against the appointment made in the general merit category and the appointment of the petitioner has to be considered as against the reserved category for a Scheduled Tribe. The selection of respondent No.5 is illegal.
Relevant Paragraphs: 7 & 8. The deceased was aged 17 years at the time of the accident. According to the appellants, the deceased was a student and was also doing milk vending business and he was an earning member of his family. The..Tribunal concluded that the deceased was a child of 17 years and there was no evidence to show that he was engaged in milk vending and accordingly considered him as a person without income.
10. Section 2 (i) and (ii) of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (for short “the Act”) defines as follows: “(i) “adolescent” means a person who has completed his fourteenth year of age abut has not completed his eighteenth year;“(ii) “child” means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), whichever is more.”
11. Section 3 of the Act prohibits employment of a child in certain occupations and processes. The said Act does not prohibit the adolescent of 17 years to involve in a milk vending business. The deceased and his family are from rural area and it is common for a person of 17 years to be involved in milk vending or similar occupations. The Tribunal has completely lost sight of this fact and the reasoning is contrary to and in the teeth of the statutory provisions.
15. The deceased was aged 17 years at the time of the accident. As per the decision of the Hon’ble Apex Court in Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009 ACJ 1298, the applicable multiplier is ‘18’ that needs to be applied.
58(b) Simple mortgage.—Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
Mathai Mathai v. Joseph Mary, (2015) 5 SCC 622. Paragraph 20.2 Simple mortgage is a mortgage where property is mortgaged without delivering possession of the mortgaged property to the mortgagee.
58. (c)Mortgage by conditional sale.—Where the mortgagor ostensibly sells the mortgaged property—on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale: Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
Ganpati Babji Alamwar v. Digambarrao Venkatrao Bhadke, (2019) 8 SCC 651. Paragraph 10. Whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case. The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58(c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner. The language used in the agreement may not always be conclusive.
58 (d) Usufructuary mortgage.—Where the mortgagor delivers possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
Mathai Mathai v. Joseph Mary, (2015) 5 SCC 622. Paragraph 20.2 The mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and further authorises him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage money.
Narpatchand A. Bhandari v. Shantilal Moolshankar Jani, (1993) 3 SCC 351. Paragraph 7. A usufructuary mortgagee is a transfer of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property. Tenanted premises, if is mortgaged by the landlord by way of usufructuary mortgage, the usufructuary mortgagee thereunder would become entitled to receive the rents and profits accruing from such property in his own right and on his own account
58(e) English mortgage.—Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
Raj Kishore v. Prem Singh, (2011) 1 SCC 657 . Paragraph 21. A transaction to constitute an English mortgage the following essential conditions must be satisfied: (1) The mortgagor must bind himself to repay the mortgage money on a certain date. (2) The property mortgaged should be transferred absolutely to the mortgagee. (3) Such absolute transfer should be made subject to the proviso that the mortgagee shall reconvey the property to the mortgagor upon payment by him of the mortgage money on the date the mortgagor binds himself to pay the same. 22. It is only in cases where all the three requirements indicated above are satisfied that the transaction constitutes an English mortgage and not otherwise.
58(f) Mortgage by deposit of title-deeds.—Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
State of Haryana v. Narvir Singh, (2014) 1 SCC 105. Paragraph 13. Mortgage by deposit of title deeds is the actual handing over by a borrower to the lender of documents of title to immovable property with the intention that those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. 14.2. No instrument is required to be drawn for this purpose. However, the parties may choose to have a memorandum prepared only showing deposit of the title deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates rights, liabilities or extinguishes those, the same requires registration.
58(g) Anomalous mortgage.—A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.
Sardar Govindrao Mahadik v. Devi Sahai, (1982) 1 SCC 237. (as an example) Paragraph 2. Even though the mortgage was mortgage with possession, it was not a usufructuory mortgage but an anomalous mortgage in that the mortgagor had agreed to pay interest at the rate of 12 per cent and the mortgagee was liable to account for the income of the property earned as rent and if the mortgagee himself occupied the same he was bound to account for the rent at the rate of Rs 515 per annum.
Case details: – Respondent 4 contested and won the election to the office of Board of Management of a Co-operative Credit Society governed by the provisions of the Karnataka Co-operative Societies Act, 1959. He submitted a caste certificate claiming to be ‘scheduled caste’. Writ Petition was filed seeking a writ of quo-warranto against him.
5. In addition to reiterating the various grounds urged in the petition and referring to the documents produced by the petitioner, learned counsel for the petitioner submits that the petitioner is entitled to the reliefs sought for by him in the petition, particularly when respondent No.4 is guilty of fraud in that he produced a fake caste certificate which was not at all issued by the Tahsildar as can be seen from the material on record. In support of his contentions, learned counsel places reliance on the following decisions:-University of Mysore vs. C.D.Govinda Rao – AIR 1965 SC 491;P.M.Parameshwara Murthy vs. State of Karnataka – W.P.No.4340/2012 dated 21.11.2012, Chairman & M.D., FCI vs. Jagadish Balaram Bahira – AIR 2017 SC 3271, Bharathi Reddy vs. State of Karnataka – W.A.No.5872/2017 c/w W.A.No.100657/2017 dated 04.12.2017, Bharathi Reddy vs. State of Karnataka – (2018) 6 SCC 162.
10.the genesis/basis for the respondent No.4 to file nomination, contest elections and get elected under the scheduled caste category was the alleged caste certificate which is clearly a fake certificate that was not issued by the Tahsildar. It is therefore clear that the entire election process commencing from filing of nomination and culminating in the election of respondent No.4 on the basis of a fake caste certificate is vitiated on account of the same being illegal and contrary to statutory provisions and Rules of procedure and consequently, availability of the remedy under Section 70 of the Act is not a bar for the present petition seeking quashing of the election results and for issuance a writ of quo warranto against the respondents.
14. The power of this Court to issue a writ of quo warranto is now well settled. In C.D.Govindra Rao’s case supra, a Constitution Bench of the Apex Court, while quoting Halsbury’s Laws of England held as under:- “An information in the nature of a quo warranto took the place of the obsolate writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.”
15. It follows there from that respondent No.4 is holding the post of an elected director of the Society without any legal authority and he is guilty of usurpation of the said post. Consequently, in view of the fact that the post held by the respondent No.4 is a public office and that the respondent No.4 got elected to the post based on a fake caste certificate which was never issued by the Tahsildar and that respondent No.4 is holding the post without any legal authority coupled with the fact that he is not able to show cause as to how and under which authority of law he is holding the post, I am of the considered opinion that as a consequence of setting aside the election results at Annexure H, it is just and proper to issue a writ of Quo Warranto against respondent No.4 directing him to be ousted from the post of elected director of respondent 3 society.
Compiled by Harsh Desai and S. Basavaraj, Advocates for Daksha Legal.
Magnificent opening paragraph: To quote Shakespeare from fall of Wolsey, with a slight variation to suit the context “Had I served my God with half the zeal that I served my King, I would not have fallen in these days of impecuniosities”, is the cry of the petitioner in this petition seeking terminal benefits after having retired on attaining the age of superannuation twenty one years ago.
Para 20. KPTCL, is a State under Article 12 of the Constitution of India. The aforesaid act of leaving its employee in the lurch does not behove its status of being a State under Article 12 of the Constitution of India. Therefore, it is imperative to issue a mandamus for release of all the terminal benefits that are accrued in favour of the petitioner along with interest and also mulct the KPTCL with exemplary costs for harassing and driving its employee to this Court time and again and now for release of terminal benefits. Therefore, the petitioner would be entitled to release of all terminal benefits along with interest at 9% p.a. from the date it fell due i.e., 01.08.1999 till the date of its payment.
21. Before parting with the judgment it is necessary to remind the KPTCL that pension payable to its employees upon superannuation is a property under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation of even a part of this amount cannot be accepted, except in accordance with law, as pension is neither a bounty, charity or a gratuitous payment but an indefeasible right of an employee in terms of the Rules. Terminal benefits will enable a retired employee to live a life free from want, with decency, independence and self-respect. Depriving such right to livelihood, will leave a pensioner fall on the thorns of life and bleed.
Relevant paragraphs: 18. Accused, as the evidence shows, has betrayed utter disdain to the inherent right of C.W.1 as a human; to her individual autonomy to choose who to love and to her right to choose a husband and even, to defer to the wishes of her parents in matters of significance in her life, which in itself is a conscious “choice”. This in essence is a fundamental right guaranteed to every individual under Articles 14, 19 (1) (a) and 21 of Constitution of India. To permit the accused to take a defence of ‘grave and sudden provocation’ in the facts and circumstances of this case apart from being “obnoxious”, (Pawan Kumar, at para-47) [(2017) 7 SCC 780] will result in negation of the fundamental rights of the deceased under Articles 14, 19 (1) (a) and 21 of the Constitution of India and, as such, opposed to public policy.
19.While on this, we must hasten to add that we are not unmindful of the general position that fundamental rights not excluding those under Articles 14, 19(1)(a) and 21 are all guarantees against actions of State and its instrumentalities and not against criminal offences by one citizen against another. We are even more conscious of the ‘felt necessities of the time’ that wherever text does not inhibit and context demands, ordinary laws of the land should be given such construction and, scope of defences available so mapped that lofty principles enshrined under the above Articles are given full effect to and dehumanizing effect of the defences are suitably pruned without doing violence to the statute creating such defence while at the same time making it resonate with the current understanding of the concept of gender justice and dignity of the individual. ‘The Declaration of Independence’ of July 4, 1776 says in ringing tones, “……..we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and happiness “.
20. Life, Liberty and pursuit of Happiness is an entitlement and a right without which there cannot be a ‘right to life’ for an individual and shorn of the same, it will only be a creature existence. Thus viewed, extending the protective umbrella of ‘grave and sudden’ provocation to the accused, in the facts and circumstances of this case, will have the effect of robbing the victim of her right to express her `choice’. In other words, the defence of ‘grave and sudden’ provocation shall not avail an accused if the result of permitting such a defence is to dehumanise the person of victim, stultify her individual autonomy, agency and dignity.
Held: Paragraph 21..Alternate remedy -…Rule 15 (1) provides that the validity of the election of the President or the Vice-President may be called in question by a petition presented to the District Judge, within seven days from the date of declaration of the election, by any candidate at such election or by three or more Councillors joined together as petitioners. Clause (3) of Rule 15 provides that the petitioner shall join as respondents to his petition where the petitioner in addition to claiming a declaration that the election of the returned candidate is void and claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and when no such further declaration is claimed, only the Returning Officer as respondent. Rule 17(a)(ii) enumerates the grounds for declaring the election of the returned candidate as void, that being, non-compliance of the provisions of the Act or any of the Rules.
22. …A plain reading of the above provisions, do not envisage or invest powers with the District Judge to go into the question of the validity of reservation notification. Rule 17 invests power in the District Judge, in a duly constituted Election Petition, to declare the election of the returned candidate to be void, if in the opinion of the District Judge the ‘result’ of the election has been materially affected by any non- compliance with the provisions of the Act or of any of the Rules. A plain reading of the said provision would mean and refer to the action and conduct of the returned candidate in not complying with the provisions of the Act or the Rules. By any stretch of imagination, these provisions cannot be interpreted in a manner that the law invests powers in the District Judge, while dealing with an Election Petition, to declare a notification issued under Rule 13 and 13-A of the Rules as void or illegal.
23. A co-ordinate Bench of this Court in the case of Mr.Ravindra Nayak Vs. Karnataka State Election Commission and Others reported in ILR 2019 KAR 1409, while considering the question of alternate remedy in the matter of reservation and rotation of seats arising out of the Karnataka Municipal Corporations Act, but while dealing with similar provisions of law, noticed the decision of the Apex Court in the case of Bharati Reddy Vs. State of Karnataka and Others (2018) 12 SCC 61. The Apex Court in the case of Bharati Reddy has held that judicial review is a part of basic structure and therefore the exercise of power under Article 226 of the Constitution of India cannot be said to be an absolute bar, though it is left to the discretion of the Court as to whether such power is to be exercised in a 65 particular case. While interpreting Section 35 of the Karnataka Municipal Corporations Act, 1976, which appears to state that the election petition could be preferred to redress a grievance where there has been non-compliance of the provisions of the Act or Rules, or orders made thereunder, the co-ordinate Bench has held that the principle of rotation as envisaged by the Guidelines is not merely a private right of a contestant but is a statutory requirement and such grievance if left open to be raised by every individual contestant subsequent to the announcement of results would not only be impractical, but an illusory alternative remedy, and in fact no remedy at all in the light of the discussion therein. This Court is in respectful agreement of the decision of the co- ordinate Bench. Therefore, in the matter of reservation of the Offices of President and Vice- President and for that matter to post of Councillors, Election Petition as provided under Rule 15 of the Rules is not a remedy.
Daksha Legal 