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

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