1. The judgment of the Supreme Court in the case of Sai Kamal Shivaji Pokarnekar Vs State of Maharashtra in Crl.A.255/2019 (DD 12.02.2019) is likely to open floodgates for frivolous complaints which arise out of disputes purely of civil nature. 

2. It is true that a wrong may give rise to both civil and criminal liability and in such a case where offence under the penal law is clearly made out, a court cannot threw out a complaint merely on the ground that remedy by way of civil suit is available.  However, experience has shown that recently with the expansion of commercial activities, large number of criminal complaints are filed regarding disputes purely or predominantly of civil nature by camouflaging the same as criminal offence by clever drafting by legally trained persons. 

3. Above decision of the Supreme Court has stated propositions of law so broadly that the courts may be compelled to entertain a complaint purely of civil nature, as the same has been drafted cleverly including therein all the ingredients of the alleged offence.  The Supreme Court has laid down the following direction:

“If the ingredients of the offence alleged against the accused are made out in the complaint the criminal proceedings shall not be interdicted ” (emphasis supplied)

4. A complaint of the type referred to above are mostly in commercial transactions where business houses file such complaints which are drafted not by the laymen but by advocates or legally trained persons.  One cannot expect such complaints authored by people with legal background not to contain all the ingredients of the offence alleged.  The Supreme Court did not even say that the court should be guided by the substance of the matter rather than by its form. 

5. If the above dicta of the Supreme Court is taken literally even a computer can successfully perform the functions of magistrate.  The computer can tell you whether the complaint contains allegations which constitute ingredients of the offence or not and accordingly pass orders.  As early as in the year 1969, the Supreme Court while dealing with judicial function of a Judge in appreciating the material on record observed as follows:

“Judges are not computers.  They must call in aid their knowledge of Worldly affairs in appreciating evidence”.  (1969 SCR (1) 412 Chaturbhuj Panda & others Vs. The Collector).

6. Again in the case of Niranjan Singh (AIR 1990 SC 1962 para 7), the Supreme Court observed that even at the initial stage one “need not consider everything that prosecution says as gospel truth even if it is contrary to common sense and broad probabilities of the case”.

7. By the present judgment the discretion of the magistrate is confined to only reading of the complaint and nothing else, not even referring to the documents produced with it to determine if the dispute is of civil  nature or not.  Observation of the Supreme Court that “correctness or otherwise of the allegations has to be decided only in the trial” further puts embargo on the power of the court to treat the case as a civil dispute at any stage earlier than conclusion of the trial. 

8. The Supreme Court appears to have given undue importance to the wordings of the complaint rather than the substance of the dispute which has to be ascertained from all circumstances available on record. 

9.       A 3 Judge Bench of the Supreme Court in the case of  Madhava Rao Scindia (AIR 1988 S.C. 709) observed as follows:

“A case of breach of trust is both a civil wrong and a criminal offence.  There would be certain situations where it would be a civil wrong and may or may not amount to criminal offence”.

10.     Again in Parbathbai Aahir’s case 2017 (9) SCC  641, the Supreme Court held as follows:

“16.7. As distinguished from serious offences there may be criminal cases which have an overwhelming or predominant element of a civil dispute.  They stand on a distinct footing in so far as exercise of inherent power to quash is concerned”.

11.     The present decision of the Supreme Court does not refer to above earlier rulings and primarily or exclusively give importance to the wordings in the complaint and virtually directs exclusion of all other material.  Thus indirectly it lays emphasis on the capacity of the author to draft the complaint mentioning the Ingredients of the offence.  If that is successfully done, then the accused is bound to face harassment till the conclusion of the trial, as according to the Supreme Court the decision on the question could be only after trial. 

12.     It is a matter of common knowledge that with the increase in the volume of commercial transactions, courts are over burdened with cases involving such  complaints.  Such  entities make all attempts to get their claims settled early.  It is well known that civil cases takes years to attain finality.  Therefore, in most cases, business entities try to initiate criminal actions so as to secure early settlement of their disputes.  To achieve this end, services of police are utilized by adopting questionable means and the power of police is abused to compel parties to settle the disputes on threat of criminal action including arrest.  Many a times to shield themselves against criticism of registering FIRs in civil disputes, on the advise of police, private complaints are filed before the Magistrates and routine orders under section 156 (3) of Cr.P.C are secured for ordering registration of FIR and investigation.  These developments lead to enormous pressure on criminal courts and police whose time is wasted in such frivolous cases purely of civil nature, thereby ignoring genuine cases involving serious offences. 

13.     The Supreme Court and the High Courts must bear above practical aspects in mind while laying down law on the question of taking cognizance of alleged offences which are purely or predominantly of civil nature. 

14.     According to Article 141 of the Constitution, law declared by the Supreme Court is binding on everyone including all courts and tribunals.  Of course, in many cases the Supreme Court has clarified that “it is not every observation or opinion expressed by the Supreme Court is law of the land”.  It is only the ratio decidendi  which is binding.  However, in practice, no judge or Magistrate can afford to ignore even a stray sentence in the judgment of the Supreme Court on the ground that it is not ratio but only obiter.  It is therefore, imperative that Supreme Court should be careful in making observations on legal aspects which, if followed in the context of different fact situation, might result in miscarriage of justice. 

15.     It is therefore, suggested that it is  expedient and in the interest of justice that the superior courts rest their judgments on the facts of the case rather than lay out broad propositions of law in general terms.  Even where such proposition of law is laid down, it would be advisable  to use expressions such as  “ordinarily” or “normally” so that in a given case courts are empowered to carve out an exception to render justice.  It is also advisable for superior courts to make it clear that only in exceptional circumstances; the normal rule could be relaxed. 

16.     In many cases of breach of contract, which enables only civil remedy, an attempt is made to give it colour of criminality by making out of a case of cheating.  The dividing line between the two is rather thin. While mere breach of contract can never be cheating, if  at the time of promise itself, the party had intention to deceive, a case of cheating is made out.  According to the above decision of the Supreme Court, if the complaint contains an allegation that at the time of promise itself the opponent entertained an intention to cheat, (though not supported by circumstance) then the courts cannot terminate the proceedings till the trial is over. It is hoped that the Supreme Court will very soon clarify its above decision to enable quashing of cases involving civil dispute.

17.     The power of courts to terminate frivolous proceedings at initial stages such as taking cognizance or discharge or even quashing  under section 482 Cr.P.C should not be unduly curtailed by using such expressions as “rarest of rare cases” etc., without leaving the decision to the sound judicial discretion  of the High Courts. This will enable criminal courts to usefully utilize their time and energy to dispose of genuine criminal cases involving serious crimes rather waste their time on luxury litigation involving purely civil disputes.

Mr. B.V. Acharya, Senior Advocate and former Advocate General for Karnataka.

Mallappa Ramappa Naik and others vs Ittappa Ramappa Banti @ Heggani and others. Regular Second Appeal 1811/2005 decided on 14 October 2020. Justice V. Shrishananda.

Judgment Link: (High Court server down. Will update link later. )

Relevant Paragraphs: 13. Order XX Rule 5 CPC contemplates a mandatory duty on Trial Court to answer all issues framed in a suit. Non answering of all issues results in vitiating the entire judgment subject to exception carved out in Order XIV Rule 2 CPC.

14. The term “issue” in a civil case means a disputed question relating to rival contentions in a suit.  It  is the focal point of disagreement, argument or decision. Needless to emphasise that framing of appropriate issue/s serves the laudable object of narrowing the conflict in a succinct manner. Scheme of Civil Procedure Code, contemplates that the court must thereafter proceed with the trial based on the issues and pronounce  its  judgment  by answering all the issues.

17. …what constitutes a  judgment  is  no  longer res integra. In this regard, reliance is placed on the judgment of the Hon’ble Apex Court in the case of  K.V.  Rami Reddi v. Prema, reported in AIR 2008 Supreme Court 1534. The relevant portion of the said judgment is culled out hereunder:

9. The ultimate question is whether in the instant case the judgment has been validly delivered? If it is a mere procedural irregularity and the Judge concerned had  not signed the judgment, then the judgment thus rendered cannot be invalidated. Order XX Rule 1 CPC postulates that after the case has been heard, the court hearing the same shall pronounce the judgment in open court by dictation to the shorthand writer, wherever it is permissible. It bears the date on which it is pronounced. The date of the judgment is never altered by the date on which the signature has been put subsequently.  The mere fact that a major portion has been dictated by the learned Judge in the judgment already  dictated, will not, by itself, lead to the conclusion that the judgment had been delivered.

10. In Smt. Swaran Lata Ghosh Vs. Harendra Kumar Banerjee and Anr. (AIR 1969 SC 1167), it was inter-alia held as follows (at Para 6):

“Trial of a civil dispute in Court is intended to  achieve, according to law and the procedure of the Court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on question of law as well as fact, ascertainment of facts by means  of  evidence  tendered by the parties and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by  the most cogent reasons that suggest themselves to the Judge; a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of  whim or fancy, but of a judicial approach to the matter in contest; it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the Court has decided against him, and more so, when the judgment is subject to appeal. The Appellate Court will then have adequate material on which it may determine whether the facts are properly  ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned Trial Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plant.”

11.The declaration by a Judge of his intention of what  his  `judgment’  is  going  to  be,  or  a  declaration  of his intention of what final result it is going to embody, is not a judgment until he had crystallized his intentions into a formal shape and pronounced it in open court as the final expression of his mind.

12. The CPC does not envisage the writing of a judgment after deciding the case by an oral judgment and it must not be resorted to and it would be against public policy to ascertain by evidence alone what the `judgment’ of  the Court was,  where  the final result  was announced  orally  but  the  `judgment’,  as  defined  in  the CPC embodying a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision, was finalized later on.

13. Section 2(9) of the CPC defines a “judgment” to mean the statement given by the Judge of the grounds for a decree or order. “There is yet another infirmity in the case which relates to the “judgment” passed by the  single  Judge and upheld by the Division Bench.

“Judgment” as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment “shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision”.  It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.”

15. Undisputedly, the Trial Judge had not completed the judgment before he delivered his decision.  That being so, the impugned judgment does not suffer from any infirmity to warrant interference. What the High Court has directed is to hear only the arguments afresh. While dismissing the appeal, we direct that the arguments shall be heard afresh and the Trial Court  shall deliver its judgment as early as practicable, preferably within three months from today. To avoid unnecessary delay, let the parties appear before the Trial Court on 05.03.2008 so that the date for arguments can be fixed.”

18. It is also necessary to place reliance on the decision of this court reported in AIR 2001  Kant  120, in  the case of Lakshmamma vs Kamalamma And Others, where in it was held as under:

“17. The Trial Court also erred in not considering and deciding issue Nos. (2) to (5). Under Order 20, Rule 5  it is mandatory that the Court shall state its finding or decision with reasons thereof upon each separate issue and all the distinct issues have to be answered by the finding supported by reasons. The exceptional situation is provided under Order 14, Rule 2 where an issue relating to the jurisdiction or a bar to a suit created by any law for the time arises for determination and if  Court can once and for all dispose of the case with reference to the said issues only. In such a situation, the Court is entitled to postpone the settlement of other issues only after that issue has been determined  and  may deal with the suit in accordance  with the decision on the said preliminary issues. In the  instant  case,  issue No. (1) obviously cannot be considered as one covered by the purview of Order 14, Rule 2.”

19. On careful perusal of the above statutory provisions of Order XIV Rule 2 and Order XX Rule 5  CPC  Trial Court after remand order  … was  duty  bound answer all issues raised in the suit while passing the judgment….  Non-recording  of  the  findings on the remaining issues by the Trial Court, is  totally  erroneous and cannot be countenanced  in  the  eye  of  law  and can be safely termed as perverse.

20. Further, on applying legal principles enunciated in Rami Reddy Supra to the case on hand, non recording of finding on remaining issues by Trial Court other than additional Issue Nos.4 and 5, the judgment cannot be termed as a judgment in the eye of law and it is incomplete judgment.

29. Therefore, this Court has no option, but to set aside the judgment and decree so passed by  Trial  Court and confirmed by first appellate court and remand the matter for decision afresh by hearing the arguments on all issues as recording of evidence is concluded.

Compiled by S. Basavaraj, Advocate, Daksha Legal

A batch of Writ Appeal/Petitions, nine Senior Advocates including Solicitor General of India and Additional Solicitor General of India, more than 25 instructing counsel – all logged in from different parts of the country and one from abroad, 5000 pages of documentation and marathon hearing for 25 working days including two Court holidays, totally 61 hours of hearing. This is the biggest experimentation by the Karnataka High (Virtual) Court in the matter of Securities Exchange Board of India vs Franklin Templeton Trustees Services Pvt Ltd & others decided on 24 October 2020.

The Corona related lockdown and closure of courts opened a new avenue of virtual courts through video conference. The judiciary especially High Courts across the country are fully equipped with the new technology. The court staff are fully trained. The complements given by the learned advocates in Securities Exchange Board of India vs Franklin Templeton Trustees Services Pvt Ltd & others shows the hard work and efficiency exhibited by the court staff in handling the entire matter brilliantly.

However, as I have seen, when the writ matters are listed in ‘B’ group or when other matters are indicated by the court to be heard, learned advocates are seeking adjournment stating they would like to argue physically. This, I feel is a pure state of mind rather than the practical difficulty being pleaded. Minor and avoidable technical glitches do happen. As noted by the Karnataka High Court only once an issue of connectivity of internet was faced for a brief period of ten minutes just before the submissions of learned Solicitor General of India were heard.

”All the parties will not agree about the correctness of the conclusions drawn on merits. But we are sure that all the parties will agree that notwithstanding the voluminous record, long length of arguments and involvement of complicated legal and factual issues, hearings can be effectively conducted by use of video conferencing facility.“ – Chief Justice speaking for the bench.

I may mention here, the advocates fraternity sat Dharna and made strongest demands for filling up of vacancies in the Karnataka High Court. Justice A.N. Venugopala Gowda, Mr. B.M. Arun, Advocate and myself had to file a Public Interest Litigation before the High Court seeking a direction to Union of India in this regard. Finally, the strength of Judges in Karnataka High Court has reached its satisfactory mark. The judiciary is fully equipped. Advocates fraternity, especially the younger members of the bar are doing their best to reduce pendency of cases.

It is high time we all gear up with the sense of inevitable reality that virtual courts are here to stay and any matter of any magnitude can be dealt with, with the active participation of Bar and Bench. The recent disposal of several Criminal Appeals involving serious crimes like rape and murder through video conference has withered away the slightest apprehension about disposal of matters involving life and liberty of the citizens through video conferencing.

“Traditional court room drama is undoubtedly delightful. But the conviction to clear pendency through other legally permissible ways is noble.”

S. Basavaraj, Advocate & Member, Karnataka State Bar Council

The recently concluded, longest Virtual Court via video conference by the Karnataka High Court (Chief Justice Abhay Shreeniwas Oka and Justice Ashok S Kinagi) in 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), is a clear indication of the emerging global and transnational disputes redressal process via Virtual Courts.

it is said ‘Sometimes it takes a disaster to bring humanity together‘. Radio was on the frontlines in both World Wars. It brought populace together. In one of the greatest speeches, Charlie Chaplin, in the movie “The Great Dictator” says.. “the aeroplane and the radio have brought us closer together. The very nature of these inventions cries out for the goodness in men, cries out for universal brotherhood, for the unity of us all.”  Flipside of this technological wonder was witnessed during the Rwandan genocide against the Tutsi. Radio Télévision Libre des Mille Collines (RTLM) broadcast from July 8, 1993 to July 31, 1994 played a significant role in inciting the April–July 1994 Genocide.

Today, we are witnessing another manmade disaster called Covid-19. However, the resultant lockdown and closure of courts have opened new avenue of communication in the form of Virtual Courts. The judiciary is now fully equipped for disputes resolution via video conference subject to minor & avoidable glitches. Disposal of cases at preliminary hearing and admission stage matches regular court scenario.

The matter in Securities Exchange Board of India vs Franklin Templeton Trustees Services Pvt Ltd & others was heard from August 12, 2020 in the afternoon session through video conferencing. The hearing concluded on 24^th September 2020. The record of these writ petitions ran into more than 5,000 pages. The cases were heard even during the Court holidays on 29^th August 2020 and 19^th September 2020 . The hearing through video conferencing was conducted on 25 working days for total 61 hours without any major glitch. It enabled lawyers to appear from London, New Delhi, Chennai,  Mumbai  and  Bengaluru. The cause title shows several legal luminaries appearing for the parties. While Mr. Tushar Mehtha, Solicitor General of India logged in from Delhi. Mr. Harish Salve, Senior Advocate logged in from London, UK. Mr. Arvind Datar, Mr. Ravindra Shrivastava and Mr. Janak Dwarkadas, Senior Advocates and the instructing counsel logged in from Delhi. Mr. Uday Holla, Mr. K.G. Raghavan and Mr. Adithya Sondhi, Senior Advocates and Mr. M.B. Naragund, Additional Solicitor General of India logged in from Bangalore.

In the usual fairness, the Chief Justice bench has noted the compliments given by the Advocates for service rendered by the Registrar (Judicial) Shri. K.S. Bharath Kumar  and  his  team  as  well  as  Shri.   B.M.Satheesha,   Shri.C. Shashikanth and Mrs. T. Bhagya, Court Officers.

Large number of documents forwarded by the learned counsel through e-mail during the course of hearing were efficiently handled by the team and were immediately placed before the Court. The Court has expressed appreciation for service rendered by the aforesaid members of the staff, Shri. N.Suresh, Hardware Engineer and the team of Computer Committee.

The issue involved. The entire dispute revolves around winding up of six Mutual Fund Schemes of Franklin Templeton Trustee Services private Limited (the Trustees). The investors who challenged the winding up contended that the discretion conferred on a Mutual Fund under sub-clause (a) of clause (2) of Mutual Fund Regulation 39 was subject to the fulfillment of the conditions as provided in clause (15) of Regulation 18 and that consent of the unit-holders was required for winding up, in view of clause (15) of Regulations.

The Trustees contended that the decision to wind up the Schemes was pursuant to the express provisions of the Mutual Funds Regulations, as contended in the statement of objections filed by SEBI and that no approval from the unit- holders was required for taking a decision regarding winding up.

The Hon’ble Supreme Court, by its order dated 19 June 2020, transferred all the matters pertaining to the dispute, to Karnataka High Court with a request to the Hon’ble Chief Justice to take up matters himself in  a  Division Bench.

The Judgment: The Karnataka High Court has held that;

(1) Regulations 39 to 40 of the Mutual Funds Regulations are valid.

(2) When the Board of Directors of a Trustee company, decides to wind up a Scheme by taking recourse to sub-clause (a) of clause (2) of Regulation 39, the Trustee company is bound by its statutory obligation under sub-clause (c) of clause (15) of Regulation 18 of obtaining consent of the unit-holders  of the Scheme by a simple majority. 

(3) A notice as required by clause (3) of Regulation 39 can be issued and published only after making compliance with the requirement of obtaining consent of the Unit-holders.

(4) Considering the duties of the Trustees under the Mutual Funds Regulations, they perform a public  duty. Therefore, when it is found that the Trustees have violated the provisions of the SEBI Act or  Mutual Funds Regulations, a Writ Court, in exercise  of its jurisdiction under Article 226 of the Constitution of India, can always issue a writ of mandamus, requiring the Trustees to abide by the mandatory provisions of the SEBI Act or the Mutual Funds Regulations.

(5) No interference can be made with the decision of the Trustees dated 23^rd  April 2020 of winding up of the said Schemes. However, the decision can be implemented only after obtaining the consent of unit-holders as required by sub-clause c) of clause 15 of Regulation 18. Issue No.(v) is answered accordingly;

(6) In exercise of the powers under Section 11B of the SEBI Act, SEBI has no jurisdiction to interfere with  the decision of winding up of a Scheme made by taking recourse to Regulation 39 (2)(a). 

Compiled by S. Basavaraj, Advocate, Daksha Legal

Jayamma vs The Regional Commissioner and others. Writ Petition 11768/2020 decided on 23 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345337/1/WP11768-20-23-10-2020.pdf

Note: This is a case where the President of Jilla Panchayat in earlier round of Writ Petition opted  to  take benefit of Rule 3(2) of  the  new  Rules,  2020 under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993.  The petitioner in the present writ petition raised a challenge to the very same provision under which she  took relief at the hands of  the  Court. The High Court hence relied on the rule of estoppel to reject the Writ Petition. The other question as to whether the 2020 Ordinance amending the provisions of Karnataka Gram Swaraj and Panchayat Raj Act, 1993 curtailing the term of office of the President from 5 years to 30 months is prospective or retrospective is kept open since the High Court rejected the Writ Petition on the preliminary ground of estoppel.

Relevant Paragraphs: 12. It is profitable  to  notice  series  of  declarations  made  by  the  Hon’ble  Apex  Court  on  “Rule  of  estoppel”.  In  the   case  of Nagubai Ammal Vs. B. Shama Rao,  reported  in  AIR  1956 SC 593, it was held “it is  clear  from  the  above  observations that the maxim that a person cannot ‘approbate  and reprobate’  is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and  to the persons who  are parties thereto.”  In C.Beepathumma Vs. Velasari Shankaranarayana Kadambolithaya reported in  AIR  1965  SC  241,  the  classic  words of Maitland in Maitland’s Lectures on equity was appreciatingly noticed- “That he who accepts a benefit under  a deed or Will or other instrument must adopt the whole contents of that instrument, must conform to all  its  provisions and renounce all rights that are inconsistent with it.” Similarly, the same principle in White and Tudore’s Leading Cases in Equity, was noticed as follows;

“Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intentions of the person from whom he derives one that he should not enjoy both…. That he who accepts benefit under a deed or Will must adopt the whole contents of the instrument.” All the above decisions were authoritatively quoted in National Insurance Co. Ltd. Vs. Mastan and Another (2006) 2 SCC 641. It was held that “the “doctrine of election” is a branch of “rule of estoppel”, in terms whereof a person may be precluded by his action or conduct or silence when it  is his duty to speak, from asserting a  right  which  he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to select either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.” Their Lordships were dealing with the right of a person to claim compensation under two separate enactments. It was held  that the person entitled to compensation may without prejudice to the provisions of one enactment, claim such compensation under either of those acts but not under both.

13. In the case of City Montessori School Vs. State of Uttar Pradesh and Others (2009) 14 SCC 253, once again the decision in Nagubai Ammal Vs. B.Shama Rao (supra) was quoted to the effect that, “  when on the same facts, a person  has right to claim one or two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief.” While citing the decision in Union of India Vs. Krishan Lal Arneja (2004) 8 SCC 453, it was held that a party consenting       to     an     order     cannot      be     permitted      to    resile therefrom while retaining the benefit obtained therefrom.

14. In Shyam Telelink Limited Vs. Union of India (2010) 10 SCC 165, while quoting the maxim “qui approbat non- reprobat” (one who approbates cannot reprobate), it was held that the said maxim is firmly  embodied  in  English  common  law and  often applied by Courts in this country.   It is akin to    the doctrine of benefits and burdens which at its most basic  levels provides that a person taking advantage under an instrument which both grants  a  benefits  and  imposes  a  burden cannot take the former without complying  with  the latter. In the same decision, while noticing the decision in Verschures Creameries Ltd. Vs. Hull & Netherlands Steamship Co. Ltd, according to Halsbury’s Laws of England 4th Edn., Vol.16:

“1508. Examples of  the common law principle of  election- After taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.” was quoted and thereafter held that this rule has to be applied to do  equity and must not be applied in such a manner as to violate the principles of right and good conscious.

15. In State of Punjab and others Vs. Dhanjit Singh Sandhu (2014) 15 SCC 144, it was held as follows: “the doctrine of election is based on the rule of estoppel,  the principle that one cannot approbate and reprobate  is inherent in it. The doctrine of estoppel  by  election  is  one  among the species of estoppel in pais (or equitable estoppel) which is a rule of equity. By this law, a person  may  be  precluded, by way of  his  actions,  or  conduct,  or  silence  when it is his duty to speak from asserting a right  which he  would  have otherwise had.  The  doctrine  of  “approbate  and  reprobate” is only a species of estoppel, it implies only to the conduct of the parties. As in the case of estoppel, it cannot operate against the provisions of statute. It  is  settled  proposition of law that once an order has been passed, it is complied with accepted by other party and he derived  the  benefit out of it, he cannot challenge it on any ground.”

17. In Ramesh Chandra Sankla and Others vs. Vikram Cement and Others, (2008) 14 SCC 58, it was held that “it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which its exercises jurisdiction is very wide and discretionary in nature.  It can  be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as court of law but also as a court of equity. It is, therefore, within the power and also the duty of the Court to ensure that power of superintendence must “advance the ends of  justice  and uproot injustice…. Powers under Articles 226 and 227 are discretionary and equitable and are required to be  exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account the balancing of interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equity may project. Court of equity must go much further both to give and refuse relief in furtherance of public interest. Granting or  withholding of relief may properly be dependent upon consideration of justice, equity and good conscience.”

Compiled by S.Basavaraj, Advocate, Daksha Legal

V.M. Narayana Swamy and another vs The State of Karnataka and another. Writ Petition 43810/2018 decided on 26 March 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/331592/1/WP43810-18-26-03-2020.pdf

Relevant Paragraphs 8. …following point would arise for our consideration: “Whether the Lokayukta/Upa Lokayukta under the Act has jurisdiction to investigate and hold an enquiry in respect of allegation made in the complaint against a person who is in the service or pay of a society registered under Karnataka Societies Registration Act, 1960 for mis- management, mis-appropriation failing to discharge his duty, mal- administration and the like?”

9. The jurisdiction of Lokayukta and Upalokayukta to investigate is circumscribed by the powers conferred under Section 7 of the Act. The jurisdiction so vested cannot extend beyond what is specifically provided thereunder. In other words, they have been conferred power to investigate a grievance or an allegation against a public servant as defined under the Act. They have not been conferred any power to investigate a grievance or an allegation against a private individual.

10. ….Where the Lokayukta or Upa Lokayukta proposes after making preliminary enquiry, as deemed fit, to conduct any investigation under the Act, is required to forward such copy of the complaint to the “public servant” against whom complaint is made to the and the competent authority concerned. In other words, the public servant is afforded an opportunity to offer his comments to such complaint. Thus, a harmonious reading of Section 7 and Section 9 would indicate that investigation can be taken up against a “public servant” only. The expression “public servant” is defined under Section 2(12) of the Act, which reads: (Section extracted). “The expression “Government servant” as indicated in Section 2(12)(d) is defined in Section 2(6) and it reads: (Section extracted).

11. A plain reading of Section 9 of the Act would clearly    indicate    that    investigation    against    a    ‘Public Servant’   under   the   Act   can   be   undertaken   by   the Lokayukta or Upa-Lokayukta after making such preliminary inquiry as deemed fit and such allegation is made against a public servant for having abused his position as ‘public servant’ to obtain any gain or favour to himself or to any other person or to cause undue hardship or harm to any other persons; was actuated in discharge of his function as a ‘public servant’ by personal interest or improper and correct motives; fails to act in accordance with the norms of integrity and conduct which ought to be followed by public servant; or his guilty of corruption, favoritism or nepotism or lack of integrity in his capacity. Thus, condition precedent for investigating under Section 7 or being proceeded under Section 9 to enquire into would be that such person against whom the proceedings under the Act is initiated should be a “Government servant”.

12. A person in the service of pay of such of the authorities as defined under Section 2(12) would also be amenable for being investigated by Lokayukta or Upa- Lokayukta. In the event of such person falling outside scope of section 2(12), it cannot be gainsaid by the Lokayukta or Upa-Lokayukta that such persons would  still be amenable to their jurisdiction, inasmuch as, it is only a “public servant” as defined under Section 2(12), who would be amenable for being investigated under Sections 7 and proceeded with under Section 9 of the Act. In the event of a person against whom the allegation is made, does not fall within the definition of Section 2(12), then necessarily such person cannot be roped in for investigation or proceeded under The Lokayukta Act.

13. It would be of benefit to note that under Section 2(12)(g)(iv) a society registered or deemed to have been registered under the Karnataka Societies Registration Act, 1960 would also be amenable to the jurisdiction of Karnataka Lokayukta, subject to such society being under the control of State Government and which is notified in this behalf in the official gazette. Thus, primary requirement for investigation being taken- up against a person falling under Section 2(12) is; (i) he/she should be “public servant” as defined under Section 2(12) of the Act; (ii) and, if such person is a society as indicated in Section 2(12)(g)(iv), then such society should be registered under the Karnataka Societies Registration Act 1960, under the control of State Government which is notified in the Official Gazette.

14. Petitioners herein are being investigated for their alleged acts or misdeeds said to have been committed by them as office bearers of the Association…

15.….Petitioners are not being investigated for their acts committed in the capacity of a “Government Servant” as defined under Section 2(6) of the Act or for their acts as a “public servant” as defined under Section 2(12). On the contrary, it is to be noticed at the cost of repetition that the entire allegation made by the complainant in his complaint …revolves around the acts alleged to have been committed by the petitioners as office bearers of the Association. Hence, we are of the considered view that petitioners do not fall under the definition of “public servant” as defined under Section 2(12) of the Act.

16.….there is no material on record to show that Association of which the petitioners were the office bearers of the society is controlled by the State Government and same has been notified in the official gazette issued in that behalf by the Government of Karnataka.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Ramu and others vs State and others. Criminal Appeal 246/2014 & connected appeals, decided on 21 October 2020. Justice B. Veerappa and Justice K. Natarajan.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344930/1/CRLA246-14-21-10-2020.pdf

In one of the landmark judgments on Criminal law reforms, the Karnataka High Court expressed anguish over the beastly behaviour of the accused in committing gang rape on a student from Nepal. The High Court has called upon to the Parliament to take note of the extremely disgusting scenario where womanhood are treated as objects of lust and further made strongest recommendation to amend the Indian Penal Code to impose capital punishment on gang rapists.

The Hon’ble Court in its meticulously considered judgment has quoted excerpts from Vedas and other ancient scripts to note with utmost pain as to how women who were worshiped at one point of time are treated with utter impunity.

Relevant Paragraphs: ‘The rape is not only a crime against woman.. but it is a crime against the entire civilized society’.  Physical scar will heal up but mental scar will remain for ever.

25. The imposition of appropriate punishment is the    manner in which           the  ‘Court  responds  to the society’s cry for   justice  against the criminal’.                     Justice demands  that  the  Courts  should  impose punishment befitting  the  crime  so  that  the  Courts  reflect  public abhorrence. The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. 27. Under the Constitution of India, ‘Right to live with dignity’ is a fundamental right guaranteed and it is the fundamental duty of the State to protect it.  Sexual violence       by      the       accused         apart        from       being       a dehumanizing act, is an unlawful intrusion on the  right of privacy and sanctity of a woman.   It is a serious blow to her supreme honour and offends her self-esteem  and dignity as well.  It degrades and humiliates  the  victim and  where  the  victim  is  a  helpless  innocent woman, child      or     a     minor,       it     leaves      behind  a traumatic experience.   A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position i.e., her        dignity,  honour,  reputation and chastity.   ‘Rape  is not only an   offence  against P.W.28 victim girl, but a crime against the entire society’.  It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution of India. 28. Alarming increase in crimes depicts that the criminals are not afraid of the present criminal justice system. We feel that more stringent punishment has to be introduced by further amending the provisions of Section 376D stated supra imposing death penalty or life as stated supra and due publicity has to be given to the amended provisions in discharging and deterring others from committing such crimes. The media, which is rightly called the Fourth Estate of Democracy, can play a pivotal role in bringing about the awareness of the amended provisions of law and in sensitizing the general public on the traumatic impact of the invasion of a women’s body. 29. Manu-Smriti, which is basically a compilation of Vedic Laws, unequivocally states the reverence with which women were to be treated: “Where women are worshipped, the Gods rejoice; Where they are not respected, all tasks become fruitless”. The Gods are kind to the homes where women are treated with honour. Where women are not honoured, there all actions (rituals) go in vain. Families where women are unhappy are doomed to be destroyed soon. Homes where women are not unhappy are destined always for greater prosperity.

30. In Vedas, all women have to be treated as mothers or elder sisters by male students and the admonition is: “The King’s wife, the Guru’s wife, the elder brothers’ wife, the mother-in-law and one’s own mother are considered as mothers”.

One is ordained to prostrate oneself before them every morning or whenever one meets them for the first time in  the  day.  This  is evident  from  the  reference  in the ‘Ramayana’.

32. Now the woman is typically stereotyped as sexual      object     of    pleasure       and     not     as     a    respectful motherly force. Hence, despite all material progress, western world is still inflicted with insecurity and lack of inner peace.

34. As is being rightly held by the Courts, including the Apex Court, a girl or a woman, in the tradition-bound non-permissive society of India, would be extremely reluctant even to admit  that  any  incident ,which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society, including her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home. If she is unmarried, she would apprehend that it would be difficult to secure a befitting life partners and a respectable matrimonial home. In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to the book.

46. Lord Denning while  appearing before the Royal  Commission on ‘Capital Punishment’ expressed the view as under:

“Punishment is the way in which society express its denunciation of wrongdoing and in order to maintain respect for law, it is essential that punishment inflicted for grave crimes should reflect revulsion felt by the great majority of the citizens. For them it is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment because the wrong doer deserves it, irrespective of whether it is deterrent or not”.

51. It is the nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual but also against the society to which the criminal and the victim belong.

52. In view of the pronouncements and declarations made by the Hon’ble Supreme Court, it is true that reformation as a theory of punishment had become the trend but that theory is applicable to such crimes, in which the damage is repairable or even if the damage cannot be repaired, salvation by other mode is possible. That theory is inapplicable in offences where damage is immense, irreparable and cannot be retractable and as such, severe punishment is the only mode.

58. In Vedic Society, great value was attached to the chastity of women. Therefore, any attempt to rob her off    of    chastity  was  considered       to    be     a    sin.  The Punishment  as     per     Manu      for    such  crime     included throwing the perpetrator out of the society.

• Interestingly,          the      scriptures         provide       an

insight into not  only how the  perpetrator of  offence  of

rape was dealt with but also how the victim was dealt

with by the Society. It is surprising to note that when

victims of rape in modern India are admonished by the

Society, the Vedic Society was much more supportive  of

survivors of rape.

60. It is unfortunate, a horrific act that all the accused persons have committed heinous and inhumane crime of gang rape on the victim – P.W.28 for satisfaction of their lust and ruined her life for which she has to suffer throughout her life. “Rape is not only  a crime against woman-P.W.28 victim girl, but it is a crime against the entire civilized society”.

61. Punishment must also respond to the cry of the society for justice against the criminals. While considering the punishment to be given to an accused, the Court should be alive not only to the rights of the criminal for awarding just and fair punishment by administrating justice tempered with such mercy, as the criminal may justly deserve, but also to the rights of the victim of the crime to have assailant appropriately punished and the society’s reasonable expectations from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused.

67.

‘Gang rape’ is more dangerous than ‘Murder’.

The demand for justice has to be made fully within

legal    frame   work.    In   view   of   the    provisions   of

Section  10 of  Indian  Penal  Code  the word  “Man”

denotes a male human being of any age; and the

word  “Woman”  denotes  a  female  human  being  of

any  age.  The provisions of Section 376DB of  Indian

Penal Code prescribes punishment for gang rape on

woman  under  twelve  years  of  age,  which  shall  be

imprisonment       for       life,        which        shall        mean

imprisonment  for  the  remainder  of  that person’s

natural life and with fine or with death.        Since the

unfortunate  incident  has  occurred  on  13.10.2012

and  the  provisions  of  Section   376(2)(g)   of Indian

Penal  Code  provides  rigorous  imprisonment  for  a

term  which  shall  not  be  less  than  10  years,  but

which may extend to life and shall also be liable to

fine.       The  provisions  of  Section  376D  of   Indian

Penal Code has been amended by the Criminal Law

(Amendment)  Act  2013  (13  of  2013)  which  has  come

into    force    with     effect     from    3.2.2013      imposing

punishment  of  rigorous  imprisonment  for  a  term

which  shall  not  be less than 20  years,  but   which

may extend to life, which shall mean imprisonment

for remainder of that person’s natural life and with

fine.     In view of the provisions of Section 10 and

Section 376DB of Indian Penal Code stated supra,

in our considered opinion, now it is appropriate for

the Legislature/Central Government in order to  curb

the    menace    of   ‘gang    rape’    against    woman,   the

provisions  of   Section   376D  of   Indian Penal  Code

requires  further  amendment  imposing   punishment

for  death  in  addition  to  the  existing  provision of

imprisonment for life and shall also liable to fine

on  par  with  the  provisions  of  Sections  376AB  and

376DB of Indian Penal Code keeping in view the

definition  of  ‘Woman’  under  Section  10  of Indian

Penal Code.

69.

• Though Indian Penal Code was enacted by

Act 45 of 1860, and even after lapse of 74 years of

independence, still woman is  not  safe in the hands

of rapists/violators of law.      Last but not the least,

we want to send a strong message to the Society by

reminding    ourselves,    the     famous    Quote    of    the

Father        of       the        Nation,       Mahatma       Gandhi,

immediately  after  independence  that,  “The  day a

woman can walk freely on the roads at night, that

day      we      can      say      that      India      has      achieved

independence.” Therefore, we express our anguish towards safety of the vulnerable woman folk in the society that when an educated woman studying Law Course was unable to go out of the hostel with her friend at 9.30 p.m. as the accused ravished her by abducting and committing gang rape on her and we cannot say that we have achieved the Mahatma Gandhi’s dream of Indian Independence stated supra, otherwise, we are not proud to say that India achieved empowerment of woman even after seven decades of Independency of our Country.

70.

• We, the Judges are the societal parents.

If our concern for the society of girls/ women can be

summed  up  in  one  sentence  that  “An  attack  on

anybody’s daughter is an attack on our daughter.”

While confirming the judgment We hereby recommend the Legislature/Central Government to further amend the provisions  of Section 376D of Indian Penal Code – Gang rape into capital punishment in addition to the existing provision for imprisonment of life and with fine on par with the provisions of Section 376AB and 376DB of Indian Penal Code keeping in view of definition of ‘Woman’ under Section 10 of Indian Penal Code in order to curb  the menace of ‘gang rape’ in the society at large.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

Ratnamma Baramappa Nagara and others vs State of Karnataka and others. Writ Petition 146835-853/2020 decided on 27 August 2020. Justice Sachin Shankar Magadum.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339068/1/WP146835-20-27-08-2020.pdf

Relevant paragraphs: 25. The question that would arise before this Court is, once the members of Zilla Panchayath resolve to initiate no-confidence motion against the fourth respondent-President, whether the no- confidence motion can be kept in abeyance on the premise that Rules are yet to be framed. To answer this question it would  be relevant to examine the proposition laid down by the Hon’ble Apex Court in Vipulbhai M. Chaudhary’s case (2005) 8 SCC 1. Wherein at Paragraph 16 while exhaustively dealing with no-confidence motion pertaining to the members of the Co-Operative Societies has held as follows:

“16. The principle of representative democracy is the election of representatives by the people otherwise eligible to cast their vote and the people thus elected, constituting the body for the management of an institution. Thus, in the case of co-operative societies, after the amendment in the Constitution, there has to be a Board of elected representatives, which may be called Board of Directors or Governing Body or a Managing Committee, etc. to which the members entrust the direction and control of the management of the affairs of the society. That representative body selects one among the elected representatives as its Chairman or any other office-bearer, as the case may be. Selection is the act of carefully choosing someone as the most suitable to be the leader or office-bearer. Thus, there is a lot of difference between election of delegates/representatives to constitute a body and selection of a person by the body from amongst the elected members to be the leader. It is to be borne in mind that the management and control of the society is entrusted to the representative body viz. the Board of Directors and that the Chairperson elected by the Board of Directions is the Chairperson of the society and not of the Board of Directors”.

26. The Hon’ble Apex Court having observed as above was also of the view that the Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayat Raj Institutions. The Apex Court was of the view that such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the panchayath. The Apex Court was also of the view that any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of the self-governance. The Apex Court at Para 25 has further observed thus:

“25. Silence in the Constitution and abeyance as well has been dealt extensively by Michael Foley in his celebrated work The Silence of Constitutions. To quote from the Preface: “ Abeyances refer to those constitutional gaps which remain vacuous for positive and constructive purposes. They are not, in any sense, truces between two or more defined positions, but rather a set of implicit agreements to collude in keeping fundamental questions of political authority in a state of irresolution. Abeyances are, in effect, compulsive hedges against the possibility of that which is unresolved being exploited and given meanings almost guaranteed to generate profound division and disillusionment. Abeyances are important, therefore, because of their capacity to deter the formation of conflicting positions in just those areas where the potential for conflict is most acute. So central are these abeyances, together with the social temperament required to sustain them, that when they become the subject of heightened interest and subsequent conflict, they are not merely accompanied by an intense constitutional crisis, they are themselves the essence of that crisis.”

In Part II, Chapter Four, the author has also dealt with the constitutional gaps and the arts of prerogative. To the extent relevant, it reads as follows (P.82):

“ Gaps in a constitution should not be seen as simply empty space. They amount to  a substantial plenum of strategic content and meaning vital to the preservation of a constitution. Such interstices  accommodate the abeyances within which the sleeping giants of potentially acute political conflict are communally maintained in slumber. Despite the absence of any documentary or material form, these abeyances are real, and are an integral part of any constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a constitution as its more tangible and codified components.”

27.The Apex Court has further held that the co-operative society registered under the Central or the State Act is bound to function as a democratic Institution and conduct its affairs based on democratic principles. The Apex Court was of  the view that democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or bye-laws both on the principle and procedure. If such Rules or procedures are not contemplated then it is for the Court to read the democratic principles and if there is no express provision under the Act or Rules, or Bye-laws for removal of an office bearer, such office-bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to the office. In this background, the contention of the learned Senior counsel appearing for the fourth respondent that this Court cannot exercise jurisdiction under Article 226 of the Constitution of India needs to be out rightly rejected.

30. In the present writ petitions, the petitioners are seeking a writ of mandamus. The petitioners are duly elected members of Zilla Panchayath and having expressed no confidence motion, have submitted a requisition to Respondents 2 and 3 as well as to the fourth respondent. The petitioners have statutory right to seek ‘No-confidence motion. On examination of the averments and grounds raised in the writ petition and also having examined the judgments cited by the learned counsel appearing for the petitioners, it is clearly forthcoming that the petitioners have some legal right to seek ‘No- confidence motion’ against the respondent No.4. The Act clearly contemplates corresponding legal duty upon the respondents.

31.In the present writ petitions, the petitioners are seeking a writ of mandamus. The petitioners are duly elected members of Zilla Panchayath and having expressed no confidence motion, have submitted a requisition to Respondents 2 and 3 as well as to the fourth respondent. The petitioners have statutory right to seek ‘No-confidence motion. On examination of the averments and grounds raised in the writ petition and also having examined the judgments cited by the learned counsel appearing for the petitioners, it is clearly forthcoming that the petitioners have some legal right to seek ‘No- confidence motion’ against the respondent No.4. The Act clearly contemplates corresponding legal duty upon the There are no two opinions about the aphoristic judicial observation that Article 226 of the Constitution confers extraordinary jurisdiction on this Court and that is wide as well as expansive, no fetter can be placed on the exercise of the said extraordinary jurisdiction. The adjudicatory ambit of an issue, indeed, is kept to the discretion of Constitutional Courts. The primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty on State and its officials.

33…I do not find any legislative intent indicating that the authority exercising power under the amended provisions has to wait until and unless, rules are framed in that regard. The word “may” would in no way preclude the authority from exercising its power under the Statute.

34.… I am of the view that in absence of any such express provision, framing of rules cannot be a condition precedent for exercise of power under the Statute. The Principle Act clearly contemplates a procedure and there would be no impediment for the authority to follow the existing procedure.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

Jayavani vs P. Geetha and others. Writ Petition 52861/2019 decided on 16 October 2020. Justice Krishna S Dixit.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344729/1/WP52861-19-16-10-2020.pdf

Relevant Paragraphs: 5. By now, it is well established that democracy and republicanism are the basic features of  the  Constitution;  about half a century ago, this Court in Sri. S Nagangound vs Y. Basy Reddy,  1969  ILR  Mys.  734,  whilst  invalidating a Munsiff’s interim order made in an election petition restraining the returned candidate  from functioning  as a member of the village panchayat has observed as under: “Normally in election matters, the verdict of the electorate has to be respected and given effect to until it is set aside on any one of the grounds on which the law permits it to be set aside.” The reasons for this view are not far to seek; if a returned candidate in an election is restrained from functioning merely because his election is in challenge,  it would not augur well   for the people of the electoral constituency; they lose a representative whom they have elected, and to that extent, there would be none in the municipal body to voice their concern; this is not a happy thing to happen in local self governance; added to this, ordinarily, the trial of election petitions is a long drawn exercise and at times such exercise consumes the full electoral tenure in question, the legislative mandate to accomplish the same in a time bound manner, notwithstanding; that is the reason why the legislature in its wisdom and consciously has not empowered the Election Tribunal to grant interim relief such as staying of election result or such other order which may have that effect, during the pendency of election disputes; this aspect having not been adverted to by the learned Judge of the Court below, the impugned order is infected with a legal infirmity, apparent on its face.

6. Although, the election petitions are tried by the Civil Courts, they are only statutory tribunals which ordinarily, do not have inherent powers in the absence of statutory enablement; this Court in Malleshappa Vs. Pavanasiddappa, 1979 (2) KLJ 171, has observed that a Munsiff functioning under the then Karnataka Village Panchayats (Election of Chairman and Vice Chairman) Rules being a persona designata does not have inherent power; merely because Section 24 of the Act prescribes CPC procedure for trial of an election petition as is applicable to suits, it cannot be readily inferred that these tribunals too have inherent power like the Civil Courts; the conspicuous absence of power to grant interim relief in election disputes, is a matter of legislative policy; a contention to the contra, militates against the rudiments of Election Jurisprudence and therefore the impugned order is ex facie unsustainable.

7. The Apex Court in Jyothi Basu vs Debi Ghosal , AIR 1982 SC 983 at para 8, has observed as under:

“A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by  different  provisions  of  the  Act. …”

The above observations equally apply to the municipal election disputes as well, since the Municipal  Bodies  now  have been granted constitutional status vide Articles 243-Q & 243-R introduced to the Constitution by the 74th Amendment, and that such bodies are grassroot units of democracy.

In the above circumstances, this Writ Petition succeeds;  a Writ of Certiorari issues quashing the impugned order; the learned Judge of the Court below is requested to accomplish the trial & disposal of the election case in E.P.No.1/2019,  within an outer limit of four months, and report compliance to the Registrar General of this Court.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

H.P. Chikkarama Reddy and another vs Kanthamma and others. Civil Revision Petition 431/2014 decided on 14 September 2020. Justice M.I. Arun.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/341450/1/CRP431-14-14-09-2020.pdf

Relevant paragraphs: 10. Prakash and others vs Phulvati and others. reported in (2016) 2 SCC 36. Paragraphs 14, 17, 18, 22 and 23 of the said judgment referred to. Para 23 of Phulvati “Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20.12.2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”.

11. Judgment in Vineet Sharma vs Rakesh Sharma and others reported in 2020 SCC Online SC 641 referred to. Para 129 of Vineet Sharma “Resultantly, we answer the reference as under: (i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. (ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20^th day of December, 2004. (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. (iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out rightly.

Placing reliance on the above two decisions of the Hon’ble Supreme Court, the petitioners state that as the partition deeds in question and the sale deed in favour of petitioner No.1 were executed prior to coming into force of the amended Section 6 of the Hindu Succession Act, 1956, respondent No.1 has no right, title or interest over the properties in question and consequently, the suit is barred by law and the plaint ought to have been rejected by the trial Court.

13. The State Amendment of Karnataka had introduced Sections 6-A, 6-B and 6-C to Hindu Succession Act with effect from 30.07.1994. Section 6-A read as under:

“6A. Equal rights to daughter in co-parcenary property. Notwithstanding anything contained in section 6 of this Act-

(a)in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased    son   or    of    such   predeceased daughter:

Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such  child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or  of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.

The said amendment was in operation till the amendment to the Hindu Succession Act made by the Parliament, which came into effect on 09.09.2005.

14. Thus, for the purpose of State of Karnataka, the daughters had equal rights in coparcenary property even prior to the Parliament amending Section 6 which came into effect from 09.09.2005. Nevertheless, daughters married prior to the amendment were excluded from the coparcenary rights. The said restriction is removed by the amendment passed by the Parliament.

15. The decisions of the Hon’ble Supreme Court referred to by the petitioners considered those transactions in which the daughters had no right over the property prior to the amendment made by the Parliament came into force. By virtue of the said decisions, the daughters cannot prefer a suit for partition, in the event if they had no right over the property prior to the amendment coming into force and the property was alienated prior to amendment coming into force. The above decisions of the Hon’ble Supreme Court do not bar the daughters from instituting a suit for partition, if as per prevailing law, prior to amendment she had a right over the property. In the instant case, the partitions took place by virtue of two partition deeds dated 06.02.2003. The sale took place on 22.11.2004.….But, if she had a right over the properties due to Karnataka Amendment which introduced Section 6-A to Hindu Succession Act, which was in force till it was eclipsed by the Central Amendment, in that event, she can maintain a suit for partition.

Compiled by S. Basavaraj, Advocate, Daksha Legal