State of Karnataka vs Avinash R Kashyap. Criminal Revision Petition 1028/2016 decided on 21 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346565/1/CRLRP1028-16-21-10-2020.pdf

Relevant Paragraphs: 24. (facts) Accused was connected to the crime only on the basis of his I.P. address. As per the complaint itself, the alleged profile was created on 30.06.2007. As per the report of the Senior S.D.E. of Vigilance Cell of the office of the General Manager Telecom, Jayalaxmipuram, Mysore, the new phone connection was provided to the father of the accused on 20.06.1997. The Broadband connection was provided on 07.07.2007.

25. An            Internet            Protocol            address (IP address) is a numerical label assigned to each device (e.g., computer, printer) participating in a computer network that uses the Internet Protocol for communication. Generally all Broadband customers are allotted dynamic I.P. address by BSNL. Until the Broadband connection is given router/modem is provided, internet does not work through I.P. address.

26. As per the aforesaid report, the Work Order for the provision of Broadband was issued on 30.06.2007. On that day, only some amount was demanded as advance rental deposit. As per the said document, Broadband connection itself was provided on 07.07.2007 i.e., after the date of the commission of the alleged offence. There was nothing to show that Broadband internet connection to the I.P. address was activated on 30.06.2007. As per the record of SDE (NIB) of Telephone exchange Mysuru, on 07.07.2007 the Broadband account was created to the telephone number of father of the accused and that was closed on 29.08.2007.

27. The report of the Junior Scientific Officer (Physics) Central Forensic Science Laboratory, M.H.A., Chandigarh dated 19.02.2010, states that the suspect storage media was forensically imaged and analyzed. On such analyzation, the suspect storage media H1 did not contain any data relevant to the case. Therefore, the Scientific examination report was also negative.

28. With such material, proceeding against the accused only on the basis Aof the IP address was futile. Under the circumstances, the Sessions Court was wholly justified in holding that there were no grounds to proceed against the accused. The impugned order of discharge passed by the Sessions Court sustains on that ground. Therefore the Revision Petition is dismissed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Judgment Link: https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf

Final Directions
In view of the foregoing discussion as contained in Part B – I to V of this
judgment, we deem it appropriate to pass the following directions in exercise of
our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, it has become necessary to issue
directions in this regard, so that there is uniformity in the practice followed
by the Family Courts/District Courts/Magistrate Courts throughout the
country. We direct that:
(i) where successive claims for maintenance are made by a party
under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while
determining whether any further amount is to be awarded in the
subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous
proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any
modification or variation, it would be required to be done in the same
proceeding.

(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be applicable, shall be filed
by both parties in all maintenance proceedings, including pending
proceedings before the concerned Family Court / District Court / Magistrates
Court, as the case may be, throughout the country.

(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the
Court shall take into account the criteria enumerated in Part B – III of the
judgment. The aforesaid factors are however not exhaustive, and the concerned
Court may exercise its discretion to consider any other factor/s which may be
necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the
date of filing the application for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
For enforcement / execution of orders of maintenance, it is directed that
an order or decree of maintenance may be enforced under Section 28A of the
Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128
of Cr.P.C., as may be applicable. The order of maintenance may be enforced
as a money decree of a civil court as per the provisions of the CPC, more
particularly Sections 51, 55, 58, 60 r.w. Order XXI.

Shri. Rama Sahu by lrs. vs Vinod Kumar Rawat & Ors. Civil Appeal 3601/2020 decided on 3 November 2020.

Judgment Link: https://main.sci.gov.in/supremecourt/2017/31367/31367_2017_35_1503_24560_Judgement_03-Nov-2020.pdf

HELD: Para 6.1 Judgment in Haridas Das vs. Usha Rani Banik (Smt.) and
Others, (2006) 4 SCC 78 &  Lily Thomas vs. Union of India, (2000) 6 SC 224 relied on. It is further observed in the said decision that the words “any
other sufficient reason” appearing in Order 47 Rule 1 CPC must
mean “a reason sufficient on grounds at least analogous to those
specified in the rule” as was held in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in  Moran Mar Basselios
Catholicos vs Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526.

7. The dictionary meaning of the word “review” is “the act of
looking,   offer   something   again   with   a   view   to   correction   or
improvement”.  It cannot be denied that the review is the creation of
a   statute.     In   the   case   of  Patel   Narshi   Thakershi   vs.
Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, this Court has
held that the power of review is not an inherent power.  It must be
conferred by law either specifically or by necessary implication.  The
review is also not an appeal in disguise.  

8. What can be said to be an error apparent on the face of the
proceedings has been dealt with and considered by this Court in the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440.  It is held
that such an error is an error which is a patent error and not a
mere wrong decision.  Case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233, relied on.

8.2 In the case of State of  West Bengal and Others vs. Kamal
Sengupta and Anr., (2008) 8 SCC 612, this Court had an occasion
to consider what can be said to be “mistake or error apparent on
the face of record”.

9. To appreciate the scope of review, it would be proper for this
Court to discuss the object and ambit of Section 114 CPC as the
same   is   a   substantive   provision   for   review   when   a   person
considering himself aggrieved either by a decree or by an order of
Court from which appeal is allowed but no appeal is preferred or
where there is no provision for appeal against an order and decree,
may apply for review of the decree or order as the case may be in
the Court, which may order or pass the decree.  From the bare
reading of Section 114 CPC, it appears that the said substantive
power of review under Section 114 CPC has not laid down any
condition as the condition precedent in exercise of power of review
nor the said Section imposed any prohibition on the Court for
exercising its power to review its decision.  However, an order can
be reviewed by a Court only on the prescribed grounds mentioned
in Order 47 Rule 1 CPC, which has been elaborately discussed
hereinabove.  An application for review is more restricted than that
of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The
powers of review cannot be exercised as an inherent power nor can
an appellate power can be exercised in the guise of power of review.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Chief Manager, Punjab National Bank & anr vs Anit Kumar Das. Civil Appeal 3602 of 2020 (arising out of SLP (C) No. 8343 of 2020) decided on 3 November 2020.

Judgment Link: https://main.sci.gov.in/supremecourt/2020/8647/8647_2020_35_1504_24560_Judgement_03-Nov-2020.pdf

HELD: 8. Even on the ground that respondent – original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate, the High Court has erred in directing the appellant Bank to allow the respondent – original writ petitioner to discharge his duties as a Peon.  In the application/bio­data, the respondent original writ petitioner did not mention that he was a graduate. Very   cleverly   he   suppressed   the   material   fact   and   declared   his qualification as H.S.C., whereas as a matter of fact, he was holding a degree in the Bachelor in Arts.  Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank.   That thereafter when scrutiny of the documents was going on and when the respondent – original writ petitioner produced a graduation certificate, at that time, the bank  came  to  know  that  he  was a  graduate and  therefore not eligible and therefore the bank rightly cancelled his candidature and he was not allowed to join the bank in the subordinate cadre. Therefore, on the aforesaid ground alone, the High Court ought not to   have   allowed   the   writ   petition   when   it   was   a   clear   case   of suppression of material fact by the original writ petitioner.   An employee   is   expected   to   give   a   correct   information   as   to   his qualification.  The original writ petitioner failed to do so.  He was in fact over­qualified and therefore ineligible to apply for the job.  In fact, by such conduct on the part of the respondent –original writ petitioner, one another righteous candidate has suffered for his mischievous act.  As held by this Court in the case of Ram Ratan Yadav (supra), suppression of material information and making a false   statement   has   a   clear   bearing   on   the   character   and antecedents   of   the   employee   in   relation   to   his   continuance   in service.   A candidate having suppressed the material information and/or giving false information cannot claim right to continuance in service.  Thus, on the ground of suppression of material information and the facts and as the respondent – original writ petitioner even otherwise was not eligible as per the eligibility criteria/educational qualification   mentioned   in   the   advertisement.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Gurunath Reddy vs The State of Karnataka and others. Writ Petition 226145/2020 & Connected matters decided on 16 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346429/1/WP226145-20-16-10-2020.pdf

HELD: Paragraph 23. This Court is mindful of the following principles of law which are now metamorphosed while examining the Constitutional validity of any law or a provision/s of such law. (a) Constitution      of      India      is      the Grundnormand and all laws flow therefrom. Thus any law which violates the principles of the Constitution would be tested for legislative competence / violation of the rule of law/ basic structure / abridgement of fundamental rights etc. There is always a presumption in favour  of the constitutionality of an enactment and the burden is upon him who attacks it to show that there is a clear transgression of the principles of the Constitution of India. (Shri Ram Krishna Dalmia and others vs. Shri  Justice  S.R.Tendolkar  and  others   reported in AIR 1958 SC 538). (b) The Courts are reluctant to declare a law invalid or ultra vires on account of unconstitutionality. Instead the Courts would accept an interpretation which would favour the constitutionality than accept an approach which would render the law unconstitutional (Government  of  Andhra  Pradesh   vs. P.Laxmi Devi reported in  AIR  2008  SC  1640). (c) Declaring a law unconstitutional is one of the last resorts to be taken by Courts. Instead the Courts would employ principles of reading down or reading into the provisions to make it effective and workable. (A.R.Antulay vs R.S.Nayak and another reported in 1988 (2) SCC 602). (d) In A.R.Antulay vs  R.S.Nayak  reported  in (1988(2) SCC 602), the Apex Court held that if two views are possible, one making the law constitutional and the other making it unconstitutional, the former view must prevail and the Court must make efforts to uphold the constitutional validity of a statute.

25. The petitioners cannot sustain their challenge to Section 28-A(5) of the Act of 1959 on the basis that it infringes Article 19(1)(c) of the Constitution of India, as there is no embargo placed upon the rights of the petitioners to form a society. Further neither the Act of 1959 nor Section 28-A(5) contained therein can be treated as a reasonable restriction under Article 19(4) against exercise of any right conferred by Article 19(1)(c) of the Constitution.

26. If that be so, can the appointment of an administrator under Section 28-A(5) of the Act of 1959 be held unconstitutional on the ground that it violated the “autonomous” functioning of a co-operative society?

27. It is pertinent to note that cooperative societies in Karnataka were self-governed institutions but were controlled and regulated by the Act of 1959. As is evident from the Statement of Objects and reasons for the introduction of Part IX-B into the Constitution of India, which is extracted above, the Government of India felt a strong need to amend the Constitution of India so as to keep the co-operatives free from unnecessary outside interferences and also to ensure their autonomous organizational set up and their democratic functioning. Thus, with an avowed object to make these societies autonomous by infusing certainty of term / transparency / accountability / equal participation, the Parliament introduced the Ninety-seventh (97^th) amendment to the Constitution exalting the right to form co-operative societies as a fundamental right under Article 19(1)(c) of the Constitution and stipulated an endeavour to the State under Article 43B to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. Article 243-ZI of the Constitution provided for the incorporation of cooperative societies, regulation and winding up of co- operative societies based on the principles of voluntary formation, democratic member-control, member-economic participation and autonomous functioning.

28. It is relevant to note that prior to Ninety- seventh (97^th) amendment to the Constitution, elections were conducted by the outgoing managing committee under the supervision of the Registrar of societies. Now by virtue of the 97^th amendment, a Cooperative Election Authority is constituted for the purpose of conducting elections to the Board of management. The petitioners have not challenged the constitution of such election authority as violating the autonomous functioning of a cooperative society. The words “autonomous functioning” itself indicates that the autonomy is in the functioning of the society. The “autonomy” granted to a co-operative society cannot be understood as “freedom” from regulation by legislation/ scrutiny by the executive. The word “autonomy” or “autonomous” cannot be read either in isolation or in a manner which may defeat the legislative aim to professionalize the working of co-operative societies and ensure their running on economically sound principles. In fact, the Ninety-seventh (97^th) Constitutional Amendment reflect the legislative intent to revamp and reenergise the co-operative movement as a whole and to ensure that co-operative movement surges towards the achievement of the goals of securing social and economic justice and the equitable distribution of the fruits of developments.

29. One of the purposes of Part IX-B of the Constitution is to ensure a smooth transition by the outgoing board to the incoming board of management so that there is no vacuum between the two. That is the reason why Article 243-ZK of the Constitution provides that the election of a board shall be conducted before the expiry of a term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of the members of the outgoing board. Thus, even in the contemplation of the Parliament, the conduct of elections by election authority before the expiry of the term of the board did not impinge the autonomous functioning of a cooperative society.

31.In the present case, the elected members of the Board have vacated the office and a vacuum is created between the outgoing board and the to-be elected board due to covid-19 pandemic. The learned counsel for the petitioners were unable to point out any provision either in Part IX-B of the Constitution of India or the Karnataka Co- operative Societies Act, 1959 which enabled the Government of the day to extend the term of the elected members of the board. Section 39-A of the Act of 1959 imposes a positive duty on the Election authority to conduct the elections and to ensure strict compliance. It is precisely for this reason that Section 39-AA(15) of the Act of 1959 mandates that the Board of a Society should furnish the list of members in advance. Section 28-B(2) of the Act of 1959 provides that if the Board fails to make arrangements for elections within the time specified in Section 39-A, then the Board would be deemed to have vacated their office and the members of the Board would be disqualified from contesting the elections. It is with a view to avoid such vacuum that Section 28-A(5) of the Act of 1959 provides for the appointment of an administrator if elections are not held under Section 39-A of the Act of 1959. This is clearly in line with Article 243-ZL(v) of the Constitution which provides for supersession of a co- operative society if the Co-operative Election Authority under Section 39-AA of the Act of 1959, fails to conduct elections in accordance with the provisions of the Act of 1959. If Part IX-B of the Constitution of India itself provides for supersession / suspension and interim management of a co-operative society, subject however to certain conditions, the same cannot be construed as affecting the “autonomous functioning” of a co-operative society. When a statute or provisions thereof owes its emergence to a provision of the Constitution of India, then the question of considering the interplay between the two would not arise, as the examination of the statute is limited to ascertain whether the statute or the provisions thereof adhere to the constitutional mandate. It is the Constitutional mandate that has to be upheld. Thus  Section 28-A(5) and Section 28-B of the Act of 1959 cannot be termed unconstitutional as they do not undermine the autonomous functioning of a co-operative society but on the contrary enhances autonomy.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Moogambigai Charitable and Educational Trust and Others. vs Union of India and others. Writ Petition 7482/2020 & 9236/2020 decided on 3 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346425/1/WP7482-20-03-11-2020.pdf

Relevant Paragraphs: Page 38. (I) As to Center-State relationship in a federal structure and mutual deference between them: The people of this country through their Constitution have secured to themselves a polity of federal nature, arguably, whatever be its variants; the Apex Court in KESAVANANDA BHARATI VS. STATE OF KERALA, (1973) 4 SCC 225 has held that, ‘federalism’ is one of the basic features of our Constitution; it hardly needs to be stated that in the constitutionally-ordained-federal structure, the States cannot be treated as vassals of the Center, the sovereignty having been constitutionally divided between them; the Australian jurist Prof. K.C.Wheare, ascribes a  ‘quasi  federal’ tag to our Constitution, is beside the point; in the Center- State relations, the Constitution of India expects that the Center and the States should show due deference to  each other, as being the co-ordinates; this assumes increasing importance with the increasing complexities of the enlargement of inter-state engagements in the context of ever widening socio-economic order;

(b) the UGC Regulations which are mandatory in nature recognize the stake-holding of the State Govts. in the matters relating not only to the grant of status of ‘Deemed to be University’ but also to the claims for inclusion of institutions of higher education & research in the ambit of such Universities; therefore, they explicitly require solicitation of the views of the State Govt. and their due consideration at the hands of the concerned in the decision making process; the same has not happened in this case is the complaint of the State Govt. which is substantiated by the abundance of material on record; the State Govt. has to notify its views to a statutory body like the UGC, does not relieve the Central Govt. from the duty imposed by law; the instances of the case at hand may give some scope for the criticism that the impugned action of the Central Govt. stands as a refutation of the elements that animate the federal character of our governance.

Page. 42. ….there being a strong presumption of constitutionality of  plenary legislations vide Ram Krishna Dalmia vs Justice S. R. Tendolkar, 1959 SCR 279; in the case of conflict, arguably the Central law prevails over the State law; however, a deeper examination of this contention has not  been  undertaken, since these cases are being decided on other grounds; H.M.Seervai in his treatise, supra, at page 261 having surveyed the law relating to constitutional adjudication, writes: “The Court will not decide Constitutional  questions if a case is capable of being decided on other grounds… The Court will not decide a larger Constitutional question than is required by the case before it”.

ALSO SEE: (I) As to exclusive jurisdiction of the Apex Court under Article 131 of the Constitution, in disputes between Central Government and State Governments:

Page 11. …in view of the provisions of Article 131 of the Constitution of India, some doubt arose in the mind of this Court as to the maintainability of said writ petition, although none of the parties in their pleadings or submissions mentioned about  the same; it is profitable to reproduce Article 131, for the ease of reference:

“Original jurisdiction  of  the  Supreme  Court (marginal note to the Article)

Art. 131. Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Government of India  and  one  or more States; or between the Government of India and any State or States on one side and one or more other States on the other; or between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:”

Going by the text & context of this Article, it can be stated  that  the  jurisdiction  of  the  Hon’ble  Supreme  Court  in disputes as to the existence of a legal right between the Union and the States, or between the States inter se, is exclusive, subject to constitutional exceptions; going by its intent & content, this Article would ordinarily be attracted only when the dispute arises between or amongst the States and the Union in their constitutional capacity, stricto sensu as contradistinguished from other capacities, of course subject to all just exceptions; it is a constitutional conferment of jurisdiction in regard to certain specified matters which are required to be decided by the Apex Court by reason of the nature of the “differences and disputes” that may crop up in the functioning of a federal structure like ours; in a constitutional set up based on the federal principle, sovereignty having been divided between the federation and the units, obviously disputes arise inter se; this conferment  of jurisdiction is under special circumstances and for special reasons having the concept of justice as being the predominant factor that appears to have prompted the Makers of our Constitution to enact such a provision in the Primary Document; the Apex Court in STATE OF KARNATAKA vs. UOI, (1977) 4 SCC 608 observed “…

Disputes of  the nature described in Article 131  are usually of   an urgent nature and their decision can brook no delay. It is therefore, expedient in the interest of  justice that they  should,  as far as possible, be brought before and decided by this  Court so as to obviate the dilatoriness of a possible  appeal.  An  original proceeding decided by this Court is decided once and  for all”.

Mr. H.M.Seervai in his treatise “Constitutional Law of India” 4th Edition (Tripathi) at page 2635 of his treatise, writes: “…  Under  Article  131 there are only two limitations to the exercise of the Sup. Ct.’s jurisdiction, namely, that the suit or proceeding should be between the parties specified under Article 131 and the dispute between those parties must relate to a legal right…”;

Royal Orchid Hotels Limited vs Rock Reality Private Limited. Civil Miscellaneous Petition 288/2018 decided on 13 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346423/1/CMP288-18-13-10-2020.pdf

Relevant paragraphs: 7(i) (iii) What is the scope of adjudication involved in the instant petition in the light of the provisions contained in Section 11(6-A) of the Arbitration and Conciliation Act,1996? (iii) Whether the dispute involved in the present petition between the petitioner-lessee/tenant and respondent-lessor/landlord in relation to a claim for specific performance arising of the lease agreement …is arbitrable warranting reference to arbitration?

Page 17….. Section 11(6-A) of the Act continues to remain in the statute book and is in force and consequently, the decision of the Apex Court in Uttarakhand Purv Sainik Kalyan Nigam Limited vs. Northern Coal Field Limited – (2020) 2 SCC 455 reiterating its earlier decisions qua Section 11(6-A) would continue to be applicable to the facts of the instant case.

Page. 18. Under these circumstances, I am of the considered opinion that by virtue of Section 11(6-A) of the Act as well as the decisions of the Apex Court in Uttarakhand’s case and Mayavati Trading’s case (supra), the scope of adjudication for this Court in the present petition is restricted / confined / limited to examining whether there exists an arbitration agreement between the parties and all and every other issue/contention of any of the parties will have to necessarily be decided by the arbitral tribunal. Page 27. ….in Nataraj Studios (P) Ltd. vs. Navrang Studios And Another – (1981) 1 SCC 523 case, the question that fell for consideration before the Apex Court was with regard to the right of landlord/lessor to seek possession/eviction of the tenant/lessee from the demised premises…., the Apex Court came to the conclusion that the designated small causes court under the Rent Act alone had the jurisdiction to adjudicate upon the right of the landlord/lessor to seek possession /eviction of the tenant /lessee and the said dispute was not arbitrable and the Arbitrator did not have jurisdiction to decide the matter……decision of the Apex Court in Nataraj’s case (supra) rendered in a fact situation qua the Maharashtra Rent Control Act whereby the lessee/tenant was a statutory/protected tenant is not applicable to the facts of the instant case in which the petitioner- lessee/tenant is neither a protected/statutory tenant in respect of the schedule property to which the Rent Control Act is not applicable.

Page 29. Para 36 of Booz Allen & Hamilton Inc. vs. SBI Home Finance Ltd., – (2011) 5 SCC 532; referred “The well-recognised examples of non- arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.

Page 30. The Judgment of the Supreme Court in Olympus Superstructures Private Limited v. Meena Vijay Khetan & Ors. – (1999)5 SCC 651 referred.

“34. … We are of the view that the right to specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree, with a view to shorten litigation in regular court to refer the issues relating to specific performance to arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or Section  48(5)(b) of the English Arbitration Act, 1996 which contained a prohibition relating to specific performance of contracts concerning immovable property.”

32. ..Under these circumstances, applying the law laid down by the Apex Court in Olympus Superstructure’s case and Booz Allen’s case (supra), I am of the considered opinion that the dispute involved in the present petition between the petitioner-lessee/tenant and respondent-lessor /landlord in relation to a claim for specific performance arising of the lease agreement ..is an arbitrable which is capable of being resolved by reference to arbitration.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Meena R Poojary and others vs State of Karnataka and another. Criminal Petition 4993/2015 decided on 23 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346168/1/CRLP4995-15-23-10-2020.pdf

Relevant Paragraphs: 7. …It is necessary to consider whether the allegations made in the private complaint attract the offence under Section 498A and other offences alleged against them. In a decision reported in 2000(3) SCC 693 in the case of G.V.Rao vs. L.H.V Prasad and others, the Hon’ble Supreme Court in paragraph No.12 has held as under:

“12.  There     has     been      an      outburst     of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable  the  young couple to settle down in life and  live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are   also  involved  with  the  result  that  those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in  the  criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.”

10. When the contents of the FIR and complaint are perused, it is apparent that there are no specific allegations that these petitioners have directly caused harassment to the complainant to get dowry and gold ornaments….Thus,  overlooking the fact borne out of experience that there is a tendency of involve the entire family members of the household in the domestic quarrel taking place in the matrimonial dispute as  observed in the decision of  the  Hon’ble  Supreme  Court  in the case of Geeta Mehrotra and another vs. State of Uttar Pradesh and another reported in (2012)  10  SCC  741.

12. In a decision reported in AIR 2003 SC 1386 in the case of B.S.Joshi and others vs. State of Haryana and another, the Hon’ble Supreme Court has observed in paragraph No.14 as under:

“14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband  and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper- technical view would be counter productive and would act against interests of  women  and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.”

Criminal proceedings are quashed.

Compiled by S. Basavaraj, Advocate, Daksha Legal

M/s. Imperia Structures Ltd vs Anil Patni and another. Civil Appeal  3581-3590/2020. Decided on 2^nd November 2020. Justice Umesh Uday Lalit and Justice Vineet Saran

Judgment Link: https://main.sci.gov.in/supremecourt/2019/9796/9796_2019_34_1502_24555_Judgement_02-Nov-2020.pdf

HELD: On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

Relevant paragraphs. 25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called “consumers” within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.

27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee* , it was held by this Court:- “The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. (See Bharat Bank Ltd. V. Employees* and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corpn* .

28. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act.

On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

 Compiled by: S.Basavaraj, Daksha Legal.

Securities Exchange Board of India vs Franklin Templeton Trustees Services Pvt Ltd & others . Writ Appeal 399/2020 and connected matters decided on 24 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345451/1/WA399-20-24-10-2020.pdf

HELD: Para 236. A writ petition under Article 226 of the Constitution of India may be maintainable against a private body discharging public duty or positive obligation of public nature. A  writ of mandamus can be issued against a person or  a  body under a liability to discharge any function under any statute, to compel it to perform such a statutory function.   If a private body   or person violates the statutory provisions of the statute such as the Industrial Disputes Act, Minimum Wages Act, Factories Act, laws relating to environment, a writ would certainly be issued for compliance with those statutory provisions.

237. We may go back to the decision of the Apex Court in the case of Binny Ltd., and another –vs- V. Sadasivan and others (supra) wherein, in paragraph 11, the Apex Court held thus: “11. Judicial review is designed  to prevent the cases  of abuse of power and neglect of duty by public authorities. However, under our  Constitution,  Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the  governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of  the  Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted   by the public or that section of the public as  having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest.

238. In the case of Ramakrishna Mission and another –vs- Kago Kunya and others⁷⁷ the Apex Court has dealt with the question whether Ramakrishna Mission is a State, within the meaning of Article 12 of the Constitution of India.  In paragraph  32, the Apex Court held thus: “32. Before an organisation can be held to discharge  a public function, the function must be of a character that is closely related to functions which  are performed by the State in its sovereign capacity.  There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In  setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make  it  an  “authority”  within  the  meaning  of Article 226. State Governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital  performs  a  public  function.  In  the  present case, the absence of State control in  the  management of the hospital has a significant bearing on our coming to the conclusion that the  hospital  does not come within the ambit of a public authority.”

240. Thus, from the aforesaid decisions of the Apex Court, the position which emerges is that a writ of mandamus could be  issued against any private body or a person discharging a public duty or discharging positive obligation of public nature.  If  a  private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such private body or a person, the public law remedy under Article 226 of the Constitution of India can be invoked. A body is said to be performing a public function or duty when it seeks to achieve collective benefit to the general public or a section of the public  and it is accepted by the public or a section of the public having authority to do so. Moreover, a writ may be issued to a private body or private person when they fail to comply with  the  provisions of any statute which need to be complied with by all concerned, including a private company.  This is so because of  the language used by Article 226 of the Constitution of  India  which shows that a writ can be issued to any person or authority. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not “State” within the meaning of Article 12 of the Constitution  provided the above tests are satisfied.

Hence, the High Court under Article 226 of the Constitution can exercise power  of  judicial review of the action of such a body.

Compiled by S. Basavaraj, Advocate, Daksha Legal