K. Venkatachalam v. A. Swamickan, (1999) 4 SCC 526

Relevant Paragraphs. 25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a Member from that constituency. How could a person who is not an elector from that constituency represent the constituency? He lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be an elector of that constituency. The appellant in the present case is certainly disqualified for being a Member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act. The appellant knows he is disqualified. Yet he sits and votes as a Member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as a debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. The appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law.

26. The question that arises for consideration is if in such circumstances the High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be a Member of Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. From the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as “Venkatachalam, s/o Pethu” taking advantage of the fact that such a person bears his first name. The appellant would be even criminally liable as he filed his nomination on an affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be a fraud on the Constitution.

27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao8 it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one the bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?

28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a Member of the Legislative Assembly. The net effect is that the appellant ceases to be a Member of Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed Respondent 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to the Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly constituency. Normally in a case like this the Election Commission should invariably be made a party.

29. When leave to appeal was granted to the appellant by this Court operation of the impugned judgment was suspended. Respondent 2 shall intimate to the State Government as to for how many days the appellant sat as a Member of the Legislative Assembly and it would be for the State Government to recover penalty from the appellant in terms of Article 193 of the Constitution.

30. This appeal is dismissed with costs.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Karnataka Kaigarika Pradeshabhivruddi Mandali Parishista Jaati Parishista Pangada Matthu Hindulida Vargagala Noukarara Sangha (Regd) vs State of Karnataka and others. Writ Petition 33055/2019 decided on 8 May 2020. Justice G. Narendar.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/330792/1/WP33055-19-08-05-2020.pdf

HELD: The pre-requisite for issuance of a writ of quo- warranto is that the person against whom it is sought must hold an  independent,  substantive  public  office.

Relevant Paragraphs: 29. Judgment in (2006) 11 SCC 731 B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board  Employees’ Assn. and Others noted. “Black’s Law Dictionary defines public office as under: “Public Office: Essential characteristics of “public  office”  are  (1)  authority  conferred  by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions  of Government; key element of such test is that “officer” is carrying out sovereign function. Spring v. Constantino. Essential elements to establish public position as “public office” are: position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity, State v. Taylor.

31. On a close examination of the law laid down by the Hon’ble Apex Court and as set out by the Division Bench, it is apparent that the petition is required to comply with certain pre-requisites before the High Court endeavours to issue a writ of quo-warranto. As held by the Division Bench the pre-requisite for issuance of a writ of quo- warranto is that the person against whom it is sought must hold an  independent,  substantive  public  office.

The post in question, can by no stretch of imagination be equated with an independent and substantive public office as the post.

Writ Petition Dismissed.  

Compiled by S.Basavaraj, Advocate, Daksha Legal.

Chandrashekara vs State of Karnataka. Criminal Appeal 1574/2015 decided on 29 October 2020. Justice B. Veerappa and Justice K. Natarajan.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346192/1/CRLA1574-15-23-10-2020.pdf

HELD: 34. …..Though the confession statement is inadmissible in evidence if it is made before the Investigating officer  during investigation while in custody, but the confession statement made before PW.1 as well as PW.13 was used  by the Police and PW.1, as information for the purpose of lodging the complaint and registering the case against the accused, which is permissible.

35. In the case of Faddi vs. The State of  Madhya Pradesh reported in 1964 AIR  1850  the Hon’ble Apex Court has held as under: “When the person lodging the FIR is subsequently accused of the offence, it is an admission of certain facts which have a bearing on the question to be determined by the Court. Not being a confession, nor a statement made to a Police Officer in the course of  investigation, its admissibility is not barred either by Section 25 or Section 162 of Cr.P.C.”

36. In the case of Phillips vs. State of Karnataka reported in 1980 Crl.L.J 171 (Kant), the Co-ordinate Bench of this Court has held as under: “In the case of information given by the accused is confessional in character, it has to  be looked into to decide whether any part of it would be admissible as first information setting the criminal law in motion.”

Compiled by S. Basavaraj, Advocate, Daksha Legal

Label on package of food. Bar Code on package having relevant information regarding lot/code/batch identification, which can be identified by bar score scanner is a sufficient compliance. Prevention of Food Adulteration Rules 1955.

Raghav Gupta vs State (NCT of Delhi) and another
(2020) 8 SCC 120

Corporate Laws. National Company Law Tribunal has no jurisdiction to decide succession issues. A dispute as regards right of inheritance between the parties is eminently a civil dispute and cannot be said to be a dispute as regards oppression of minority shareholders by the majority shareholders or mismanagement.

Aruna Oswal vs Pankaj Oswal (2020) 8 SCC 79.

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Daksha Legal Short Notes of Cases

Chandrashekara vs State of Karnataka. Criminal Appeal 1574/2015 decided on 29 October 2020. Justice B. Veerappa and Justice K. Natarajan.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346192/1/CRLA1574-15-23-10-2020.pdf

Tofan Singh vs State of Tamil Nadu. Criminal Appeal 152/2013 decided on 29 October 2020. (Majority view) Justice R.F.Nariman, Justice Navin Sinha and Justice Indira Banerjee.

Judgment Link: https://main.sci.gov.in/supremecourt/2012/26682/26682_2012_33_1501_24551_Judgement_29-Oct-2020.pdf

Jadiyappa vs Gurusiddappa. Regular First Appeal 100107/2016 decided on 12 October 2020. Justice N.K. Sudhindrarao and Justice Ravi Hosmani.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345360/1/RFA100107-16-12-10-2020.pdf

HELD: The claim of adverse possession or perfecting of title cannot be in the form of person in  possession canvassing that he  is in adverse possession till eternity. After satisfying the requirement adverse possession generates title over the subject property as former’s product.

Relevant Paragraphs: 24. The process regarding adverse possession is unique and significant. It is a process wherein a person’s right of possession satisfying all the ingredients for the prescribed period transforms into a title and one person need not go for declaration of completion of  prescribed  period, as such, it is the  fulfillment of  the  requirement  in order to get title.

25. Insofar as possession in order to satisfy the ingredients of animus posudendi, the mental element, the time of entering into possession must be that genuinely the person who is so entering or being inducted must feel that he is entitled to  in possession.  It  is  in  this connection Ex.P.4 mutation entry or the fact of mutation wherein the plaintiff is claim to have surrendered the property in favour of the defendant. The next one is the “corpus” possession which is established  in  respect  of  suit schedule property.

27. In other words, the claim of adverse possession or perfecting of title cannot be in the form of person in  possession canvassing that he  is in adverse possession till eternity. After satisfying the requirement adverse possession generates title over the subject property as former’s product.

28. In the overall circumstances  of  the  case, the physical possession of the plaintiff is not established. The revenue entries  by  themselves do not confer the title. However, terms and conditions attached to them continue and the person who claims title  over such property fails  to provide materials against the revenue entries, the entries would then  gain importance.  By virtue of legal concept declaring ownership or revenue entries, presumption thereon, physical possession, the bone of contention between the parties, pleadings oral and documentary evidence, legal position applicable such as that the plaintiff has failed to establish title  and  lawful possession.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

M/s. L&T Housing Finance Limited vs M/s. Trishul Developers and another. Civil Appeal 3413/2020 decided on 27 October 2020. Justice L. Nageswara Rao, Justice Hemant Gupta and Justice Ajay Rastogi.

Judgment Link: https://main.sci.gov.in/supremecourt/2019/25979/25979_2019_38_1501_24436_Judgement_27-Oct-2020.pdf

HELD: 15. Notably from the very inception at the stage, when the
proposal of taking a term loan from the appellant was furnished
by the respondents vide their application dated 15th May, 2015
and accepted by the appellant vide sanction letter dated 07th
August, 2015 (P1), the letterhead which was used for the purpose
clearly indicates that on the top of the letterhead towards right, it
reflects “L&T Finance (Home Loans)” and on the bottom towards
left, is of “L&T Housing Finance Ltd.” with their registered office
in Mumbai and this has been duly signed by the authorised
signatory of the borrower for M/s. Trishul Developers and by its
guarantors.

16. It manifests from the record that the respondents from the
initial stage are aware of the procedure which is being followed by
the appellant in its correspondence while dealing with its
customers and that is the same practice being followed by the
appellant when demand notice dated 16th December, 2016 was
served at a later stage. The demand notice in explicit terms
clearly indicates the execution of the Facility Agreement dated
11th August, 2015 between the appellant (L&T Housing Finance
Ltd.) and the respondents (M/s. Trishul Developers through its partners) and of the default being committed by the respondents
(borrower/guarantor) in furtherance thereof, a notice under
Section 13(2) of the SARFAESI Act was served on the same
pattern of the letterhead which is being ordinarily used by the
appellant in its correspondence with its customers and the
demand notice dated 14th June, 2017 without leaving any iota of
doubt is in reference to the non­fulfillment of the terms and
conditions of the Facility Agreement dated 11th August, 2015
executed between the parties and even the schedule of security
profile which has been annexed thereto is in reference to the
execution of Facility Agreement dated 11th August, 2015 and its
non­compliance of the provisions of the SARFAESI Act.

17. Even in the reply to the demand notice which was served by
the respondents through their counsel dated 08th August, 2017
in compliance to Section 13(3A) of the SARFAESI Act, there was
no confusion left in reference to the correspondence taken place
between the appellant (secured creditor) and the respondents
(borrower) tendering their justification and assigning reasons for
which compliance could not have been made and no objection
was indeed raised by the respondents in regard to the defect if any, in the demand notice dated 14th June, 2017 which was served by the secured creditor i.e. “L&T Housing Finance Ltd.” in
compliance to the provisions of the SARFAESI Act or in
furtherance to the proceedings initiated at the behest of the
appellant under Section 13(4) read with Section 14 of the Act, for
the first time, a feeble attempt was made in raising the alleged
technical objection in a Securitisation Application filed before the
DRT and succeeded.

18. It may be relevant to note that the respondents (borrower)
did not deny advancement of loan, execution of Facility
Agreement, their liability and compliance of the procedure being
followed by the secured creditor (appellant) prescribed under the
SARFAESI Act.

19. In the facts and circumstances, when the action has been
taken by the competent authority as per the procedure
prescribed by law and the person affected has a knowledge
leaving no ambiguity or confusion in initiating proceedings under
the provisions of the SARFAESI Act by the secured creditor, in
our considered view, such action taken thereof cannot be held to
be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial
prejudice being caused on account of the procedural lapse as
prescribed under the Act or the rules framed thereunder still with
a caveat that it always depends upon the facts of each case to
decipher the nature of the procedural lapse being complained of
and the resultant prejudiced if any, being caused and there
cannot be a straitjacket formula which can be uniformly followed
in all the transactions.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

When we read reportable decisions of High Courts and the Supreme Court, we also notice how trial court judgments are upheld as following the correct legal position. Many trial court judgments are really inspiring for the young aspirants of judgeship. Hence, apart from publishing reportable High Court and Supreme Court judgments, Daksha Legal proposes to publish important trial court judgments. Needless to say, these decisions are not binding. However, they guide young judges and candidates who take up judge examinations. This is to request the learned advocates to forward trial court judgments which critically examines and follows legal position. Please send the judgements to raj@dakshalegal.com

NOTE. Please do not send the judgments if they are already reversed by higher courts.