SHANTI DEVI ALIAS SHANTI MISHRA vs UNION OF INDIA & ORS. CIVIL APPEAL NO.3630 of 2020 decided on 5 November 2020

Judgment Link: https://main.sci.gov.in/supremecourt/2018/25048/25048_2018_34_1501_24598_Judgement_05-Nov-2020.pdf

18. Mulla on the Code of Civil Procedure while
    commenting on Section 20 of the Civil Procedure Code
    defined cause of action in following words:-
    “The expression ’cause of action’ has
    acquired a judicially settled meaning. In
    the restricted sense ’cause of action’
    means the circumstances forming the
    infraction of the right or the immediate
    occasion for the action. In the wider
    sense, it means the necessary conditions
    for the maintenance of the suit, including
    not only the infraction of the right, but
    the infraction coupled with the right
    itself. Compendiously the expression means
    every fact by which it would be necessary
    for the plaintiff to prove, if traversed,
    in order to support his right to the
    judgment of the Court……………….”
19. P. Ramanatha Aiyar in Advanced Law Lexicon, 3rd
    Edition, Volume 1, has defined the cause of action in
    following words:-
    “’Cause of action’ has been defined as
    meaning simply a factual situation the
    19
    existence of which entitles one person to
    obtain from the Court a remedy against
    another person. The phrase has been held
    from earliest time to include every fact
    which is material to be proved to entitle
    the plaintiff to succeed, and every fact
    which a defendant would have a right to
    traverse. “Cause of action” has also been
    taken to mean that particular act on the
    part of the defendant which gives the
    plaintiff his cause of complaint, or the
    subject matter of the grievance founding
    the action, not merely the technical cause
    of action.”
20. Black’s Law Dictionary defines the cause of
    action in following words:-
    “A group of operative facts giving rise to
    one or more bases for suing; a factual
    situation that entitles one person to
    obtain a remedy in court from another
    person…………”
21. This Court had occasion to consider the cause of
    action in context of Article 266 of the Constitution
    and has explained the expression “cause of action” in
    large number of cases. We may refer to a Three Judge
    Bench judgment of this Court in Oil and Natural Gas
    Commission Vs. Utpal Kumar Basu and Ors., (1994) 4
    SCC 711 where in paragraphs 5 and 6 following has
    been laid down:-
    “5. Clause (1) of Article 226 begins with
    a non obstante clause — notwithstanding
    20
    anything in Article 32 — and provides that
    every High Court shall have power
    “throughout the territories in relation to
    which it exercises jurisdiction”, to issue
    to any person or authority, including in
    appropriate cases, any Government, “within
    those territories” directions, orders or
    writs, for the enforcement of any of the
    rights conferred by Part III or for any
    other purpose. Under clause (2) of Article
    226 the High Court may exercise its power
    conferred by clause (1) if the cause of
    action, wholly or in part, had arisen
    within the territory over which it
    exercises jurisdiction, notwithstanding
    that the seat of such Government or
    authority or the residence of such person
    is not within those territories. On a
    plain reading of the aforesaid two clauses
    of Article 226 of the Constitution it
    becomes clear that a High Court can
    exercise the power to issue directions,
    orders or writs for the enforcement of any
    of the fundamental rights conferred by
    Part III of the Constitution or for any
    other purpose if the cause of action,
    wholly or in part, had arisen within the
    territories in relation to which it
    exercises jurisdiction, notwithstanding
    that the seat of the Government or
    authority or the residence of the person
    against whom the direction, order or writ
    is issued is not within the said
    territories. In order to confer
    jurisdiction on the High Court of
    Calcutta, NICCO must show that at least a
    part of the cause of action had arisen
    within the territorial jurisdiction of
    21
    that Court. That is at best its case in
    the writ petition.
22. It is well settled that the expression
    “cause of action” means that bundle of
    facts which the petitioner must prove, if
    traversed, to entitle him to a judgment in
    his favour by the Court. In Chand
    Kour v. Partab Singh [ILR (1889) 16 Cal
    98, 102 : 15 IA 156] Lord Watson said:
    “… the cause of action has no
    relation whatever to the defence
    which may be set up by the
    defendant, nor does it depend upon
    the character of the relief prayed
    for by the plaintiff. It refers
    entirely to the ground set forth
    in the plaint as the cause of
    action, or, in other words, to the
    media upon which the plaintiff
    asks the Court to arrive at a
    conclusion in his favour.”
    Therefore, in determining the objection of
    lack of territorial jurisdiction the court
    must take all the facts pleaded in support
    of the cause of action into consideration
    albeit without embarking upon an enquiry
    as to the correctness or otherwise of the
    said facts. In other words the question
    whether a High Court has territorial
    jurisdiction to entertain a writ petition
    must be answered on the basis of the
    averments made in the petition, the truth
    or otherwise whereof being immaterial. To
    put it differently, the question of
    territorial jurisdiction must be decided
    on the facts pleaded in the petition.
    22
    Therefore, the question whether in the
    instant case the Calcutta High Court had
    jurisdiction to entertain and decide the
    writ petition in question even on the
    facts alleged must depend upon whether the
    averments made in paragraphs 5, 7, 18, 22,
    26 and 43 are sufficient in law to
    establish that a part of the cause of
    action had arisen within the jurisdiction
    of the Calcutta High Court.”
23. This Court in Navinchandra N. Majithia Vs. State
    of Maharashtra and Ors., (2000) 7 SCC 640 had
    occasion to consider territorial jurisdiction of High
    Court under Article 226(2). Dealing with
    constitutional amendment made in Article 226(2), this
    Court laid down following in paragraph 37:-
    “37. The object of the amendment by
    inserting clause (2) in the article was to
    supersede the decision of the Supreme
    Court in Election Commission v. Saka
    Venkata Subba Rao [AIR 1953 SC 210] and to
    restore the view held by the High Courts
    in the decisions cited above. Thus the
    power conferred on the High Courts under
    Article 226 could as well be exercised by
    any High Court exercising jurisdiction in
    relation to the territories within which
    “the cause of action, wholly or in part,
    arises” and it is no matter that the seat
    of the authority concerned is outside the
    territorial limits of the jurisdiction of
    that High Court. The amendment is thus
    aimed at widening the width of the area
    23
    for reaching the writs issued by different
    High Courts.”
24. It was further held that the collocation of the
    words “cause of action, wholly or in part, arises”
    seems to have been lifted from Section 20 of the Code
    of Civil Procedure. This Court also quoted the
    definition of “cause of action” given by Lord Esher
    in Read Vs. Brown in paragraph 39. In paragraphs 38,
    39 and 41, following was laid down:-
    “38. “Cause of action” is a phenomenon
    well understood in legal parlance.
    Mohapatra, J. has well delineated the
    import of the said expression by referring
    to the celebrated lexicographies. The
    collocation of the words “cause of action,
    wholly or in part, arises” seems to have
    been lifted from Section 20 of the Code of
    Civil Procedure, which section also deals
    with the jurisdictional aspect of the
    courts. As per that section the suit could
    be instituted in a court within the legal
    limits of whose jurisdiction the “cause of
    action wholly or in part arises”. Judicial
    pronouncements have accorded almost a
    uniform interpretation to the said
    compendious expression even prior to the
    Fifteenth Amendment of the Constitution as
    to mean “the bundle of facts which would
    be necessary for the plaintiff to prove,
    if traversed, in order to support his
    right to the judgment of the court”.
    24
25. In Read v. Brown [(1888) 22 QBD 128 :
    58 LJQB 120 : 60 LT 250 (CA)] Lord Esher,
    M.R., adopted the definition for the
    phrase “cause of action” that it meant
    “every fact which it would be
    necessary for the plaintiff to
    prove, if traversed, in order to
    support his right to the judgment
    of the court. It does not
    comprise every piece of evidence
    which is necessary to prove each
    fact, but every fact which is
    necessary to be proved”.
26. Even in the context of Article 226(2)
    of the Constitution this Court adopted the
    same interpretation to the expression
    “cause of action, wholly or in part,
    arises” vide State of Rajasthan v. Swaika
    Properties [(1985) 3 SCC 217] . A threeJudge Bench of this Court in Oil and
    Natural Gas Commission v. Utpal Kumar
    Basu [(1994) 4 SCC 711] observed that it
    is well settled that the expression “cause
    of action” means that bundle of facts
    which the petitioner must prove, if
    traversed to entitle him to a judgment in
    his favour. Having given such a wide
    interpretation to the expression Ahmadi,
    J. (as the learned Chief Justice then was)
    speaking for M.N. Venkatachaliah, C.J. and
    B.P. Jeevan Reddy, J., utilised the
    opportunity to caution the High Courts
    against transgressing into the
    jurisdiction of the other High Courts
    merely on the ground of some insignificant
    event connected with the cause of action
    taking place within the territorial limits
    25
    of the High Court to which the litigant
    approaches at his own choice or
    convenience. The following are such
    observations. (SCC p. 722, para 12)
    “If an impression gains ground
    that even in cases which fall
    outside the territorial
    jurisdiction of the court, certain
    members of the court would be
    willing to exercise jurisdiction
    on the plea that some event,
    however trivial and unconnected
    with the cause of action had
    occurred within the jurisdiction
    of the said court, litigants would
    seek to abuse the process by
    carrying the cause before such
    members giving rise to avoidable
    suspicion. That would lower the
    dignity of the institution and put
    the entire system to ridicule. We
    are greatly pained to say so but
    if we do not strongly deprecate
    the growing tendency we will, we
    are afraid, be failing in our duty
    to the institution and the system
    of administration of justice. We
    do hope that we will not have
    another occasion to deal with such
    a situation.”
27. In Kunjan Nair Sivaraman Nair Vs. Narayanan Nair
    and Ors., (2004) 3 SCC 277, this Court explained the
    expression “cause of action” and has quoted with
    26
    approval the cause of action as defined by Halsbury’s
    Laws of England in paragraph 16 and 17:-
    “16. The expression “cause of action” has
    acquired a judicially settled meaning. In
    the restricted sense cause of action means
    the circumstances forming the infraction
    of the right or the immediate occasion for
    the action. In the wider sense, it means
    the necessary conditions for the
    maintenance of the suit, including not
    only the infraction of the right, but the
    infraction coupled with the right itself.
    Compendiously the expression means every
    fact which would be necessary for the
    plaintiff to prove, if traversed, in order
    to support his right to the judgment of
    the court. Every fact which is necessary
    to be proved, as distinguished from every
    piece of evidence which is necessary to
    prove each fact, comprises in “cause of
    action”.
28. In Halsbury’s Laws of England (4th
    Edn.) it has been stated as follows:
    “‘Cause of action’ has been
    defined as meaning simply a
    factual situation the existence of
    which entitles one person to
    obtain from the court a remedy
    against another person. The phrase
    has been held from earliest time
    to include every fact which is
    material to be proved to entitle
    the plaintiff to succeed, and
    every fact which a defendant would
    have a right to traverse. ‘Cause
    27
    of action’ has also been taken to
    mean that particular act on the
    part of the defendant which gives
    the plaintiff his cause of
    complaint, or the subject-matter
    of grievance founding the action,
    not merely the technical cause of
    action.”
29. Another judgment which needs to be noticed is
    Kusum Ingots & Alloys Ltd. Vs. Union of India and
    Anr., (2004) 6 SCC 254 wherein this Court reiterated
    the meaning of cause of action in paragraph 6. This
    Court reiterated that even if a small fraction of
    cause of action accrues within the jurisdiction of
    the Court, the Court will have jurisdiction in the
    matter. In paragraph 18, following was held:-
    “18. The facts pleaded in the writ
    petition must have a nexus on the basis
    whereof a prayer can be granted. Those
    facts which have nothing to do with the
    prayer made therein cannot be said to give
    rise to a cause of action which would
    confer jurisdiction on the Court.”
30. Another judgment which has been relied by learned
    counsel for the appellant is Nawal Kishore Sharma Vs.
    Union of India and Ors., (2014) 9 SCC 329. In the
    above case, the petitioner had filed a writ petition
    seeking various reliefs including disability
    28
    compensation and pecuniary damages. The petitioner
    approached the Patna High Court for grant of various
    reliefs. Although, he was declared unqualified by
    orders issued by the Shipping Department, Government
    of India, Mumbai. This Court held that Patna High
    Court has a jurisdiction to entertain the petition.
    Following was laid down in paragraph 17:-
    “17. We have perused the facts pleaded in
    the writ petition and the documents relied
    upon by the appellant. Indisputably, the
    appellant reported sickness on account of
    various ailments including difficulty in
    breathing. He was referred to hospital.
    Consequently, he was signed off for
    further medical treatment. Finally, the
    respondent permanently declared the
    appellant unfit for sea service due to
    dilated cardiomyopathy (heart muscle
    disease). As a result, the Shipping
    Department of the Government of India
    issued an Order on 12-4-2011 cancelling
    the registration of the appellant as a
    seaman. A copy of the letter was sent to
    the appellant at his native place in Bihar
    where he was staying after he was found
    medically unfit. It further appears that
    the appellant sent a representation from
    his home in the State of Bihar to the
    respondent claiming disability
    compensation. The said representation was
    replied by the respondent, which was
    addressed to him on his home address in
    Gaya, Bihar rejecting his claim for
    disability compensation. It is further
    evident that when the appellant was signed
    off and declared medically unfit, he
    returned back to his home in the district
    of Gaya, Bihar and, thereafter, he made
    29
    all claims and filed representation from
    his home address at Gaya and those letters
    and representations were entertained by
    the respondents and replied and a decision
    on those representations were communicated
    to him on his home address in Bihar.
    Admittedly, the appellant was suffering
    from serious heart muscle disease (dilated
    cardiomyopathy) and breathing problem
    which forced him to stay in his native
    place, wherefrom he had been making all
    correspondence with regard to his
    disability compensation. Prima facie,
    therefore, considering all the facts
    together, a part or fraction of cause of
    action arose within the jurisdiction of
    the Patna High Court where he received a
    letter of refusal disentitling him from
    disability compensation.”
31. Learned counsel for the appellant has also placed
    reliance on a Division Bench judgment of Patna High
    court in Saryu Singh Vs. The Union of India and Ors.,
    2015(2) PLJR 256. The above was a case where the
    petitioner had claimed the due pensionary benefits
    whose grievance was that payment made to him was less
    payment. In the above context, the Division Bench in
    paragraphs 63, 64 and 66 laid down following:-
    “63. Recently pointed out the Supreme
    Court, in Nawal Kishore Sharma v. Union of
    India, reported in (2014) 9 SCC 329, that
    the question, whether or not cause of
    action, wholly or in part, has arisen
    within the territorial limit of any High
    Court, shall have to be decided in the
    30
    light of the nature and character of the
    proceedings under Article 226 of the
    Constitution of India. In order to
    maintain a writ petition, the petitioner
    has to establish that a legal right
    claimed by him has been infringed by the
    respondents within the territorial limit
    of the Court’s jurisdiction.
32. In the backdrop of the position of
    law, as discussed above, it needs to be
    noted that the writ petitioner was,
    admittedly, an employee of Coal India
    Limited and as per the terms and
    conditions of his employment, the writ
    petitioner, as an employee, is,
    admittedly, required to be paid his
    pension and pensionery benefits by his
    employer at Patna.
33. If, therefore, the writ petitioner is
    not paid the sum of money, which is due
    and payable to him as pension and
    pensionery benefits, at Patna, it becomes
    obvious that his right to receive due and
    payable pension and pensionery benefits,
    at Patna, is being denied; consequently
    the infringement of his right or his
    sufferance of injury is at Patna.”
34. The above judgment of the same High Court was
    relevant in the facts of the present case, which
    judgment although was delivered prior in time, but
    was not noticed by the learned Single Judge as well
    as the Division Bench.

Dalmiya Cement Venture Limited vs The State of Karnataka and others. Writ Petition 104140/2013 decided on 22 August 2017.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/183184/1/WP104140-13-22-08-2017.pdf

Relevant Paragraphs: 7. It is significant to note that the respondent No.4 admitted the excess stamp duty paid by the petitioner.

9 . The Hon’ble Apex Court in the case of Mafatlal Industries  Ltd  V/s  Union  of  India,  reported  in  (1997)  5 Supreme Court Cases 536, has held thus; “Any provision appearing or trying to bar recovery of illegally collected tax is violative of Article 265 of the Constitution and must be struck down. Once it is established that more than what is payable under the statute has been collected from the taxpayer, the taxpayer automatically gets a right to get back the whole amount. If the right is sought to be effectively taken away by imposing conditions, then the law imposing these conditions must be declared to be bad and ultra vires the Constitution. There is another aspect of this matter. The Exercise Officer cannot tax more than what is permitted by the statute. If the levy is in excess of the statute, then its retention by the State is unauthorised by law. What is being retained is not in enforcement of the charging section but something else. Such illegally collected tax the money has to be utilised by the State and is not within the disposing power of the State. If the money has to be utilised by the State, the State has to find out some legitimacy for having possession of the money. Protection under Article 265 afforded to the citizens from State oppression in financial matters. Article 265 must be implemented in letter and spirit as it stands and all the tax laws and all Government actions to realise and retain tax must be tested on the anvil of this guarantee. The courts should jealously guard against any attempt to whittle down or do away with any of the guarantees given under the Constitution to the citizens. If any law is passed for retention of illegal levy, it must be struck down. If the Court comes to the conclusion that a levy of tax is unlawful, the Court will direct the Government to return the tax. It is not for the Court to enquire how the taxpayer has managed his affairs after payment of the unlawful levy. The Court cannot, by torturing the language of Article 265 or by any other means, construe it so as to give it a meaning which it does not naturally bear.”

10. In the light of the said judgment, it can be held that no unjust enrichment can be appreciated, as recovery or accepting the duty in excess of what is authorised by law would be against the mandate of Article 265 of the Constitution of India. No amount received in excess than what is stipulated chargeable can be retained by the authorities. The same would be construed as the amount collected without authority of law which is wholly unsustainable. There is no question of petitioner being charged. It is an admitted fact that the petitioner paid excess stamp duty to an extent of 1%, the same cannot be retained by the authorities, despite the application made by the petitioner for the refund of the excess amount within the period stipulated under section 44 of the Act. The authorities are bound to refund the excess stamp duty collected in terms of section 44 (2) of the Act.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Late Laxman Lakkappa Durgannavar by lrs. vs Yellawwa and others. Regular Second Appeal 2221/2005 decided on 12 March 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/333167/1/RSA2221-05-12-03-2020.pdf

Relevant Paragraphs: …17. The Karnataka Land Reforms Act, 1961 creates an embargo on transfer of land within 15 years from the date of the order of Land Tribunal. The language used in Section 61 of the Act would also disclose that the legislature has imposed a restriction on transfer of land. Erstwhile tenant, who has become occupant of land, is prohibited from selling land within 15 years from the date of final order passed by the Tribunal. Sale made in contravention of prohibition being invalid, would invite the State Government to resume the land free from all encumbrances, for granting same to other landless persons eligible for occupancy.

21. The law on the subject has been recently stated by Justice B.R. Gavai in NARAYANAMMA AND ANOTHER VS. GOVINDAPPA AND OTHERS 2019 AIAR(Civil) 1031. The Apex Court at paragraph 23 has held that the transaction i.e., agreement for sale is nothing short of a transfer of property. Under Section 61 of the Karnataka Land Reforms Act, 1961, there is a complete prohibition of transfer of land for a period of 15 years from the date of grant. I respectfully agree with the statement of law laid down by the Hon’ble Supreme Court.

23. I, come therefore, to the conclusion that the agreement for sale is hit by Section 61 of the Karnataka Land   Reforms   Act,   1961.      Accordingly,   the   second substantial question of law is answered.

25. Section 53-A (of the Transfer of Property Act) was first enacted in 1929 by the Transfer of Property (Amendment) Act, 1929, and imports into India a modified form of the equity of part performance as developed in England in Maddison Vs Alderson (1883) 8 App. Cas 467. The Section has been described by the Privy Council in PIR BUX, khan Bahadur Mian V. MOHOMED TAHAR, Sardar reported in AIR 1934 PC 235 and the Hon’ble Supreme Court in MANEKLAL MANSUKHBHAI VS HONNUUSJI JAMSHEDJI reported in AIR 1950 SC 1, as a partial importation of the English equitable doctrine of part performance. By virtue of Section 53-A of Transfer of property Act, part performance does not give rise to an equity, as in England, but to a statutory right. This right is more restricted than the English equity in two respects, (1) there must be a written contract, and (2) it is only available as a defence. So far as India is concerned, the section creates rights which were not in existence before the enactment was passed. These rights to retain possession rest on the express provisions of the statute. Section 53-A of the Transfer of Property Act insists upon proof of some acts having been done in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract, and point in the direction of the existence of contract.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

28. But, I have no doubt in my mind that the doctrine of part performance could have no place in the present case as defendant is seeking protection of his possession on the basis of an agreement for sale which is hit by Section 61 of the Karnataka Land Reforms Act, 1961. All said and done, a prospective purchaser cannot utilize the agreement for sale (with possession) as protection of possession under section 53-A of Transfer of Property Act. A transfer in contravention of Section 61 of the Karnataka Land Reforms Act, 1961 being void, Section 53- A of the said Act cannot be invoked in such a case.

Rakesh vs The State of Karnataka and others. Criminal Petition 2072/2020 & connected cases decided on 22 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346590/1/CRLP2972-20-22-10-2020.pdf

Relevant Paragraphs: Paragraph 10. On close reading of the Post Mortem Report, it indicates that the deceased has suffered with 16 serious injuries inflicted on his body and contents of the complaint clearly goes to show that the petitioner/accused No.2 and other police officials went to the house of the complainant and brought him along with them and intimated the complainant that after an enquiry within few minutes, they will send back the deceased to her house. Even on the next day, the deceased was not sent back and when the complainant went to the police station, the deceased was being assaulted and the complainant was also abused by taking the name of her caste. The police officials went and took the deceased to their custody and the deceased has suffered with so many injuries. Under such circumstances, I am of the considered opinion that the deceased was in police custody, at that time, he was inhumanly assaulted and was caused with multiple injuries. Though, it is contended during the course of the argument that the deceased himself tried to run away and fell into the well. As rightly pointed out by the learned High Court Government Pleader that specification of the well where the deceased is said to have jumped, is not a usual well and it is covered with bush. Under such circumstances, it cannot be even unimagined held that it is an accidental fall, when he was running from the custody of the police station. If really, the deceased was trying to run away from the Police Station, there are so many other alternatives available for the police to prevent him from running away. Without using such methods, they have taken a defence of he jumping into the well. Be that as it may. The police officials have not made any efforts to prevent him from jumping into the well. Even there is no explanation abut 16 injuries found over the body of the deceased that too when he was in Police custody. Under such circumstances, it creates doubt on the submission made by the learned counsel that he tried to run away from Police Station and in that light, he fell into the well. Though, it is contended by the learned counsel for petitioner Nos.4, 5 and 6 that no serious overt acts  have been alleged against them and they were not SHO or Station in-charge as per Section 167 of Cr.P.C but the deceased was in the police custody and specific allegations have been made as against each of the accused persons for having assaulted the deceased. I have also perused statement of the witnesses recorded under Section 164 of Cr.P.C. which has been made available by the Investigating Officer and there also it is found that some overt acts have been alleged as against the petitioners/accused Nos.2, 4, 5 and 6. Under such circumstances, it is considered to be a serious act. Being the police officials they cannot take law into their own hand and assault a person who is taken to the police custody. If the persons who are there to protect the rights and interest of general public and if they do such activities, ultimately it has resulted into death of an innocent person. The act of the Police Officials is like “fence itself eating the crop”, then under such circumstances, it cannot be taken lightly and it cannot be held that the petitioners/accused are not involved in the alleged offence that too they have come up before this Court under the pretext of seeking anticipatory bail.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Gangamma vs Rangaiah and others. Writ Petition 15209/2015 decided on 21 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346526/1/WP15209-15-21-10-2020.pdf

Facts: In a suit for declaration, the plaintiff wanted to produce unregistered release deed in which there was an admission regarding the will under which the plaintiff claimed ownership. The trial court rejected the prayer.

Relevant Paragraphs: 11. It is trite law that any document which purports or operates to create, declare, assign, limit or extinguish  any right, title or interest, in respect of an immovable property having a value of more than one hundred  rupees is compulsorily required to be registered as envisaged under Section 17 of the Registration Act, 1908 (for short, hereinafter referred to as ‘the Act’).

17. As could be seen from Section 49 of the Act, any document which is required to be registered under  Section 17 of the Act shall have no effect on any immovable property nor will it confer any power  to  adopt.

18. Sub-section (c) of Section 49 of the Act bars receiving a document which is not registered  as  evidence, if it is required to be compulsorily registrable under Section 17 of the Act or under the provisions of   the Transfer of property Act.

19. Section 17 of the Act mandates that documents relating to gift of immovable property or non testamentary instruments which create a transfer of interest in an immovable property having a value  of  more than Rs.100/- will have to be compulsorily registrable.

21. However, Sub-section (c) of Section 49 of the Act is subject to the proviso that an unregistered document affecting immovable property and required by the Act or by the Transfer of Property Act to be registered can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. The said proviso also states that an unregistered document can be received as evidence of any collateral transaction not required to be effected by registered instrument.

22. In other words, an unregistered document which normally cannot be received in evidence  can  nevertheless be received as evidence of any collateral transaction, which by itself, is not required to be effected by way of a registered instrument. To put it differently, if an unregistered document contains two transactions, one of which is required to be effected by means of a registered instrument and another transaction which is not required to be effected by any registered instrument, then the said unregistered instrument can be received as evidence of that collateral transaction. It is  therefore clear that only to this limited extent, an unregistered instrument can be received in evidence i.e., to evidence   a collateral transaction which by itself is not required to be effected by a registered instrument.

26. In my view, since the sub-section (c) of Section 49 of the Act and its proviso consciously uses the phrase ”evidence of any transaction affecting such property” and “evidence of any collateral transaction not required to be effected by registered instrument” it will have to be held that the only possible interpretation is that an unregistered document can be received as evidence in respect of any other fact which does not involve a  transfer of property (which would otherwise require registration    compulsorily).        In other words, an unregistered document can be received as evidence of some other fact which does not relate to a transfer of an interest in an immovable property.

28. Thus, if an unregistered instrument is to be  received in evidence, then, the document  can  be received in evidence only for the limited extent  of  proving a transaction or a fact which does not relate to a transfer of an interest in an immovable property.

29. I may, however, add that the Court, while receiving the said unregistered document would have to  necessarily specify that the document was  being  received only for the purpose of proving some other fact which was unrelated to the transfer of interest in an immovable property and the Court should specifically mark only that portion of the unregistered document and also specify the purpose for which it was being marked. The Court should also specifically record that the document cannot and should not be used as proof of anything connected to the transfer of an immovable property.

Compiled by S. Basavaraj, Advocate, Daksha Legal

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.