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constitutional validity
Constitutional validity of Entry 25 of Schedule VI to the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the ‘Act’) is the subject matter of the present appeal. whether judgment in Rainbow Colour Lab’s case was over-ruled in the case of ACC Ltd. case or not
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1145 OF 2006 |STATE OF KARNATAKA ETC. |…..APPELLANT(S) | |VERSUS | | |M/S PRO LAB & ORS. ETC. |…..RESPONDENT(S) | J U D G M E N T A.K. SIKRI, J. Constitutional validity of Entry 25 of Schedule VI to the Karnataka … Continue reading
Elections – Right of voter to vote none Candidates contested in Elections = None of the Above” (NOTA) may be provided in EVMs so that the voters= challenging the constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961 (in short ‘the Rules’) to the extent that these provisions violate the secrecy of voting which is fundamental to the free and fair elections and is required to be maintained as per Section 128 of the Representation of the People Act, 1951 (in short ‘the RP Act’) and Rules 39 and 49-M of the Rules.- In the above backdrop, the petitioners herein prayed for declaring Rules 41(2) & (3) and 49-O of the Rules ultra vires and unconstitutional and also prayed for a direction to the Election Commission of India- Respondent No. 2 herein, to provide necessary provision in the ballot papers as well as in the electronic voting machines for the protection of the right of not to vote in order to keep the exercise of such right a secret under the existing RP Act/the Rules or under Article 324 of the Constitution.= we hold that Rules 41(2) & (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting. In view of our conclusion, we direct the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called “None of the Above” (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy. Inasmuch as the Election Commission itself is in favour of the provision for NOTA in EVMs, we direct the Election Commission to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses. 62) The writ petition is disposed of with the aforesaid directions.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40835 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION 1 WRIT PETITION (CIVIL) NO. 161 OF 2004 People’s Union for Civil Liberties & Anr. …. Petitioner (s) Versus Union of India & Anr. …. Respondent(s) 2 J U D G M E … Continue reading
The Desiya Murpokku Dravida Kazhagam and Colonel Edwin Jesudoss (Retd.), challenging the constitutional validity of the amendment of the Election Symbols (Reservation and Allotment) Order, 1968, hereinafter referred to as the “Election Symbols Order, 1968”, vide Notification No.O.N.56/2000/Jud-III dated 1 st December, 2000, substituting Clause 6 with 6A(i) and (ii) and Clause 6B therein. The same was taken up for final hearing along with several other Writ Petitions on account of the common issue involved therein. The common grievance in all these writ petitions is with regard to the amendment which mandates that in order to be recognized as a State party in the State, it would have to secure not less than 6% of the total valid votes polled in the State and should also have returned at least 2 members to the Legislative Assembly of the State. – I would hold that the Symbols Order, insofar as it denies the reservation of a symbol for the exclusive allotment of the candidates set up by a political party with “insignificant poll performance”, is violative of Article 14 of the Constitution of India.
Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA EXTRAORDINARY ORIGINAL JURISDICTION WRIT PETITION (C) No.532 of 2008 DESIYA MURPOKKU DRAVIDA KAZHAGAM & ANR. PETITIONERS VS. THE ELECTION COMMISSION OF INDIA RESPONDENT WITH WRIT PETITION (C) NOS.315 OF 2009, 422 OF 2009, 426 OF 2009, 444 OF 2009, 454 OF 2009, 463 OF 2009, 447 … Continue reading
Code of Civil Procedure, 1908: Section 26(2) and Order 6 Rules 15(4) and 17-Pleadings-Affidavit in support of-Effect of-Held: Has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings-However, such an affidavit would not be evidence for the purpose of the trial-Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof. Order 18 Rule 4(1) and proviso (as amended by Act 22 of 2002 w.e.f. 1.7.2002)-Examination-in-chief-To be on affidavit in every case-Validity of-Held: Requirement is valid-In the light of O.18 R. 4(1) proviso, there is no question of inadmissible documents being read into evidence-Further, in appropriate cases the trial Court can permit the examination-in-chief to be recorded in open Court. Order 18 Rule 4(2) and proviso (as amended by Act 22 of 2002 w.e.f. 1.7.2002) and Order 26 Rule 4-A (as inserted by Act 46 of 1999 w.e.f. 1.7.2002)-Witnesses-Cross-examination or re-examination of-By the Commissioner-Additional burden on the litigant-Validity-Held: The power is valid-However, in complex cases prayer for recording of evidence by the Commissioner may be declined by the Court-The fee payable to the Commissioner is likely to be less than the expenditure incurred towards attending Court on various dates and, thus, there would be no additional burden on the litigant. Order 18 Rule 4 (as amended by Act 22 of 2002 w.e.f. 1.7.2002)-Recording of evidence-By Commissioner-Original documents-Safe custody of-Held: Duties of Commissioner laid down-In this regard, High Courts directed to frame necessary rules, regulations or issue practice directions. Order 18 Rule 4(4)-Recording of evidence-By Commissioner-Demeanour of witnesses-Benefit of watching of-Held: Although the Court is deprived of the benefit of watching the demeanour of the witnesses yet the Court would have the benefit of the Commissioner’s observations in this regard-Hence, power of the Commissioner to record evidence valid. Order 18 Rule 4-Recording of evidence-By Commissioner-Empanelling of advocates for-On the basis of tests in the subjects of CPC and Evidence Act-Validity-Held: It is a good practice-However, High Courts to examine this aspect and decide to adopt or not such a procedure. Order 18 Rule 4-Recording of evidence-By Commissioner-Appelable cases-Power to appoint Commissioner-Held: In view of the overriding effect of O. 18 R. 19 (as inserted by Amendment Act 46 of 1999) the Court is empowered to appoint a Commissioner in appealable case as well. Order 18 Rule 4-Recording of evidence-By Commissioner-Hostile witness-Power of Commissioner to declare-Held: The discretion to declare a witness hostile has not been conferred on the Commissioner-Such a power can be exercised by the Commissioner after obtaining permission from the Court under S. 154 of the Evidence Act-Evidence Act, 1872, S. 154. Order 18 Rule 17-A-Deletion of-By Amendment Act 46 of 1999 w.e.f. 1.7.2002-Effect of-Production of evidence at a later stage-Held: Even before insertion of O. 18 R. 17-A, the Court had inherent power under S. 151 to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence-Therefore, deletion of O. 18 R. 17-A does not disentitle production of evidence at a later stage. Order 8 Rule 1 and proviso-Written statement-Upper limit for filing of-Maximum period of 90 days-Extension of-Permissibility-Held: The provision is directory-Court is empowered to grant further time after expiry of 90 days in accordance with O. 8 R. 10-However, such extension of time should be granted only in exceptionally hard cases and not in a routine manner. Order 6 Rule 17 proviso-Amendment of pleadings-“At any stage”-Power of Court-Curtailment of-Held: The provision to some extent curtails absolute discretion to allow amendment at any stage-If amendment is sought after commencement of trial it has to be shown that in spite of due diligence, such amendment could not have been sought earlier-The object is to prevent frivolous application which are filed to delay the trial-There is no illegality in the provision. Order 5 Rules 9(3) and 9-A-Service of summons-Through courier-Validity-Held: Provision valid and permissible-However, there is a danger of false reports of service-High Courts directed to issue expeditiously requisite guidelines to the trial Courts by framing appropriate rules, order, regulations or practice directions. Order 17 Rule 1(2)-Costs of adjournment-Mandatory or directory-Held: Awarding of costs is mandatory-However, the same should be realistic and as far as possible actual cost incurred by the other party should be awarded where the adjournment is found to be avoidable. Order 17 Rule 1(1) proviso-Number of adjournments-Upper limit of three adjournments-Validity of-Held: It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments-In some extreme cases (natural calamities or hospitalization) adjournments beyond three may be granted-Ultimately, it would depend upon the facts and circumstances of each case-However, grant of adjournment is not a right of a party-The grant of adjournment by a Court has to be on the party showing special and extraordinary circumstances-It cannot be in routine-While granting adjournment legislative intent to restrict number of adjournments to be kept in mind. Order 18 Rule 2(4)-Deletion of-By Amendment Act 46 of 1999 w.e.f. 1.7.2002-Effect-Power of Court to call for any witness at any stage-Held: Is not affected by the deletion-Court has inherent power to call any witness at any stage suo moto or on the prayer of a party. Order 18 rule 2(3-A) to (3-D)-Written and oral arguments-Time limit-Fixing of-Held: Is fixed to save time of Court-The object is to help in administering fair and speedy justice. Order 7 Rule 14-Production of documents-“Plaintiff’s witnesses”-Held: The words “plaintiff’s witnesses” have been mentioned as a result of mistake committed by the legislature-The words ought to be “defendant’s witnesses”-Till the mistake is corrected by the legislature, the words “plaintiff’s witnesses” would be read as “defendant’s witnesses”. Order 9 Rule 5-Dismissal of suit after summons returned unserved-Plaintiff to apply for fresh summons within seven days-Mandatory or directory-Held: The period of seven days is clearly directory. Order 11 Rule 15-Inspection of documents-“At or before the settlement of issues”-Held: This stipulation is directory-It does not mean that the inspection cannot be allowed after the settlement of issues. Section 39(4) Order 21 Rules 3 and 48-Transfer of decree-Power of Court to execute decree outside its jurisdiction-Held: S. 39(4) does not dilute the provisions of O. 21 Rules 3 and 48, which allow such execution of decree subject to fulfilment of conditions mentioned therein. Section 64(2)-Private transfer of property-After attachment-Prohibition-Scope and validity of-Held: There is no ambiguity in S. 64(2). Sections 35, 35-A, 35-B and 95-Costs-Held: When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons therefor-The costs have to be actual reasonable costs like (i) cost of time spent by the successful party; (ii) incidental cost, if any; (iii) payment of Court fee; (iv) lawyer’s fee; and (v) typing and other costs in relation to the litigation-High Courts to examine these aspects and, wherever necessary, make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate Courts to follow. Section 80-Notice-Two months’ period under-Object of-Held: Notice period of two months is provided for the Government to send a suitable reply-The object is to curtail delay-The practice of Government Officers giving evasive and vague replies deprecated-All concerned Governments, Central or State or other authorities directed to nominate, within three months, an Officer who should be made responsible to ensure that replies are sent within the period stipulated after due application of mind-Despite such nomination, in case of failure to send proper replies, Court should ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him. Section 115 (as amended by Act 46 of 1999 w.e.f. 1.7.2002)-Effect of-Power of revision-Held: The power of High Court under Arts. 226 and 227 remains untrammeled by the amendment in S. 115 and is available to be exercised subject to rules of self-discipline and practice which are well settled. Section 148-(as amended by Act 46 of 1999 w.e.f. 1.7.2002)-Enlargement of time-Upper limit of 30 days-Effect of-Held: Extension of time beyond 30 days can be permitted where sufficient cause exists or events are beyond the control of the party-However, S. 148 does not apply to cases to which Limitation Act is applicable-Limitation Act, 1963. Section 89 and Order 10 Rule 1-A (as amended by Act 46 of 1999 w.e.f. 1.7.2002)-Alternative Dispute Resolution (ADR)-Held: If there exists an element of a settlement which may be acceptable to the parties, they should be made to apply their minds so as to opt for one or the other of the four ADR methods mentioned in S. 89. Section 89 and Order 10 Rules 1-A to 1-C-Resolution of disputes by Lok Adalat-Applicability of ADR Rules-Held: Rules framed under Part X of CPC are applicable and not the Rules framed under the Arbitration and Conciliation Act, 1996 or the Legal Services Authority Act, 1987-High Courts directed to examine Draft Civil Procedure ADR and Mediation Rules and finalise the same expeditiously-The Registrar Generals, the Central Government and the State/Union Territories shall file the progress reports in regard to the action taken within a period of four months-Legal Services Authority Act, 1987. Section 89(2)(a) [inserted by Act 46 of 1999 w.e.f. 1.7.2002]-Settlement of disputes outside the Court-Arbitration and Conciliation Act, 1996-Applicability of-To disputes referred to under S. 89(2)(a)-Held: Is applicable only after the stage of reference to arbitration or conciliation and not before the stage of reference-Arbitration and Conciliation Act, 1996. Section 89(2)(a)-Settlement of disputes outside the Court-Legal Services Authority Act, 1987-Applicability of-To disputes referred to Lok Adalat under S. 89(2)(a)-Held: Is applicable only after the stage of reference to Lok Adalat and not before the stage of reference. Section 89(2)(d) and Order 10 Rule 1-C-Mediation-Compromise between the parties-Terms of-Fixation of-Held: If mediation succeeds Court to effect the compromise and pass a decree in accordance with the terms of settlement accepted by the parties-But the Court is not involved in the actual mediation/conciliation-However, where settlement is not arrived at the referring Court is not debarred from hearing the matter afresh. Section 89(2)-Settlement of disputes outside the Court-Nature of proceedings-Held: The four alternatives, namely, arbitration, conciliation, judicial settlement including settlement through Lok Adalat and mediation are meant to be actions of persons or institutions outside the Court and not before the Court. Section 89(2)(a) and (d)-Mediation and conciliation-Difference between-Held: In `conciliation’ there is a little more latitude and conciliator can suggest some terms of settlements too. Section 89(2)(a) and (d)-Panel of mediators/conciliators-Rules regarding-Held: Where parties are unable to reach a consensus on an agreed name, the Court may make a reference to panel of mediators/conciliators-High Courts and district Courts directed to take appropriate steps in preparation of the requisite panels. Section 89(2)(a) and (d)-Compulsory reference to mediation/conciliation-Commission under-Expenditure on-Held: The Central Government is directed to examine the suggestion that such expenditure be borne by the Government and, if it is agreed, it should request the Planning and Financial Commissions to make specific financial allocation for the judiciary-In case Central Government has any reservations, the same should be placed before Supreme Court within four months. Section 89-ADR rules-Applicability of-To disputes arising under the Family Courts Act-Held: The Family Court Act applies the CPC for all proceedings before it and, therefore, ADR rules made under CPC could be applied to supplement the rules made under the Family Court Act-Family Court Act, 1984. Section 89-Reference to ADR-Settlement of matter-Refund of Court fee-Held: State Governments directed to amend the laws on the lines of the amendment made in the Central Court Fee Act by Act 46 of 1999. Constitution of India, 1950: Article 247 Schedule VII List I-Courts subordinate to High Court-Funds for establishment of-Judicial impact assessment-Held: Financial memorandum to be attached to each bill indicating the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new bill if it is passed by the legislature-Central Government directed to examine the above suggestion and submit a report to Supreme Court within four months. Article 21-Fair, speedy and inexpensive justice-Right to-Model Case Flow Management Rules-Adoption of-Held: High Courts directed to examine the said Rules and consider the question of adopting the said Rules with or without modification-The Registrar Generals, the Central Government and the State/Union Territories shall file the progress reports in regard to the action taken within a period of four months. Words & Phrases: “Conciliation” and “mediation”-Meaning of-In the context of Section 89(1)(b) and (d) of the Code of Civil Procedure, 1908. The challenge made to the constitutional validity of amendments made to the Code of Civil Procedure, 1908 by Amendment Acts of 1999 and 2002 was rejected by this Court in Salem Advocates Bar Association, T.N. v. Union of India, [2003] 1 SCC 49, but it was noticed in that judgment that modalities have to be formulated for the manner in which Section 89 of the Code and, for that matter, the other provisions which have been introduced by way of amendments might have to be operated. For this purpose, a Committee was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It was further observed that the Committee might consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Dispute Resolution referred to in Section 89. =Disposing of the petition, the Court HELD: 1. The affidavit required to be filed under the amended Section 26(2) and Order VI Rule 15(4) of the Code of Civil Procedure, 1908 has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof. [951-e] 2.1. The Court has already been vested with the power to permit affidavits to be filed as evidence as provided in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of cross-examination and re-examination in open Court has not been disturbed by Order XVIII Rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but no exception can be taken in regard to the power of the legislature to amend the Code and provide for the examination-in-chief to be on affidavit or cross-examination before a Commissioner. The scope of Order XVIII Rule 4 had been examined and its validity upheld in Salem Advocates Bar Association’s case. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of examination-in-chief. Further the trial Court in appropriate cases can permit the examination-in-chief to be recorded in the Court. The proviso to Order XVIII Rule 4(2) clearly suggests that the Court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the particular witness for determining whether the witness shall be examined in Court or by the Commissioner appointed by it. The power under Order XVIII Rule 4(2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. It is not necessary to lay down hard and fast rules controlling the discretion of the Court to appoint a Commissioner to record cross-examination and re-examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. For instance, a case may involve complex question of title, complex question in partition or suits relating to partnership business or suits involving serious allegations of fraud, forgery, and serious disputes as to the execution of the Will etc. In such cases, as far as possible, the Court may prefer to itself record the cross-examination of the material witnesses. [951-g-h; 952-a-d] Salem Advocates Bar Association, T.N. v. Union of India, [2003] 1 SCC 49, relied on. 2.2. Although when evidence is recorded by the Commissioner, the Court would be deprived of the benefit of watching the demeanour of witnesses yet the will of the legislature, which has, by amending the Code, provided for recording evidence by the Commissioner for saving Court’s time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanour of the witnesses. Further, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. In any case Order XVIII Rule 4, specifically provided that the Commissioner may record such remarks as it thinks material in respect of the demeanour of any witness while under examination. The Court would have the benefit of the observations if made by the Commissioner. [952-e, f, g] 3.1. In some States, advocates are being required to pass a test conducted by the High Court in the subjects of Civil Procedure Code and Evidence Act for the purpose of empanelling them on the panels of Commissioners. It is a good practice. However, it is for the High Courts to examine this aspect and decide to adopt or not such a procedure. [952-h] 3.2. Regarding the apprehension that the payment of fee to the Commissioner will add to the burden of the litigant, generally the expenses incurred towards the fee payable to the Commissioner is likely to be less than the expenditure incurred for attending the Courts on various dates for recording of evidence besides the harassment and inconvenience to attend the Court again and again for the same purpose and, therefore, in reality in most of the cases, there could be no additional burden. [953-a, b] 4. Order XVIII Rule 19 which was inserted by the Amendment Act of 1999 overrides Order XVIII Rule 5 which provides the Court to record evidence in all appealable cases. The Court is, therefore, empowered to appoint a Commissioner for recording of evidence in appealable cases as well. [953-e] 5.1. The discretion to declare a witness hostile has not been conferred on the Commissioner. The powers delegated to the Commissioner under Order XXVI Rules 16, 16-A, 17 and 18 do not include the discretion that is vested in Court under Section 154 of the Evidence Act, 1872, to declare a witness hostile. [954-b] 5.2. If a situation as to declaring a witness hostile arises before a Commission recording evidence, the concerned party shall have to obtain permission from the Court under Section 154 of the Evidence Act and it is only after grant of such permission that the Commissioner can allow a party to cross-examine his own witness. Having regard to the facts of the case, the Court may either grant such permission or even consider to withdraw the Commission so as to itself record the remaining evidence or impose heavy costs if it finds that permission was sought to delay the progress of the suit or harass the opposite party. [954-c-d] 6. Undoubtedly, the Commissioner has to take proper care of the original documents handed over to him either by Court or filed before him during recording of evidence. In this regard, the High Courts may frame necessary rules, regulations or issue practice directions so as to ensure safe and proper custody of the documents when the same are before the Commissioner. It is the duty and obligation of the Commissioners to keep the documents in safe custody and also not to give access of the record to one party in absence of the opposite party or his counsel. The Commissioners can be required to redeposit the documents with the Court in cases long adjournments are granted and for taking back the documents before the adjourned date. [954-e, f] 7. Even before insertion of Order XVIII Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order XVIII Rule 17-A did not create any new rights but only clarified the position. Therefore, deletion of Order XVIII Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just. [955-a, b] Salem Advocates Bar Association, T.N. v. Union of India, [2003] 1 SCC 49, relied on. 8.1. The use of the word `shall’ in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. The object which is required to be served by this provision and its design and context in which it is enacted has to be ascertained. The use of the word `shall’ is ordinarily indicative of the mandatory nature of the provision but having regard to the context in which is used or having regard to the intention of the legislation, the same can be construed as directory. The Rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. [959-b-c] 8.2. In construing Order VIII Rule 1, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word `shall’, the Court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to `make such order in relation to the suit as it thinks fit’. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. [957-d, g] 8.3. However, it is made clear that the order extending time to file the written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1. [957-h; 958-a] Raza Buland Sugar Co. Ltd. v. The Municipal Board, AIR (1965) SC 895, Sangram Singh v. Election Tribunal, AIR (1955) SC 425 and Topline Shoes Ltd. v. Corporation Bank, [2002] 6 SCC 33, relied on. 9.1. Section 39 of the Code does not authorize the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be affected by Section 39(4) of the Code. [958-f] 9.2. The concept of registration has been introduced in Section 64(2) of the Code to prevent false and frivolous cases of contracts being set up with a view to defeating the attachments. If the contract is registered and there is subsequent attachment, any sale deed executed after attachment will be valid. If it is unregistered, the subsequent sale after attachment would not be valid. Such sale would not be protected. There is no ambiguity in Section 64(2). [959-a, b] 10. The proviso to Order VI Rule 17, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if an application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision. [959-d] 11. The problem in respect of service of summons has been one of the major causes of delay in the due progress of the case. It is common knowledge that the defendants have been avoiding to accept summons. There have been serious problems in process-serving agencies in various Courts. There can, thus, be no valid objection in giving opportunity to the plaintiff to serve the summons on the defendant or get it served through courier as provided in Order V Rule 9. There is, however, a danger of false reports of service. It is required to be adequately guarded. The Courts shall have to be very careful while dealing with a case where orders for deemed service are required to be made on the basis of endorsement of such service or refusal. The High Courts can make appropriate rules and regulations or issue practice directions to ensure that such provisions of service are not abused so as to obtain false endorsements. In this regard, the High Courts can consider making a provision for filing of affidavit setting out details of events at the time of refusal of service. For instance, it can be provided that the affidavit of person effecting service shall state as to who all were present at the time and also that the affidavit shall be in the language known to the deponent. It can also be provided that if the affidavit or any endorsement as to service is found to be false, the deponent can be summarily tried and punished for perjury and the courier company can be black-listed. The guidelines as to the relevant details to be given can be issued by the High Courts. The High Courts, it is hoped, would issue as expeditiously as possible, requisite guidelines to the trial Courts by framing appropriate rules, order, regulations or practice directions. [959-g, h; 960-a-d] 12.1. The awarding of cost under Order XVII Rule 1(2) has been made mandatory. Costs that can be awarded are of two types. First, cost occasioned by the adjournment and second such higher cost as the Court deems fit. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even then adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoided but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. [960-e; 961-c-d] 12.2. The provisos to Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on the number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII Rule 1. In some extreme case, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. [960-g-h; 961-a-c] 13.1. Further, to save the proviso to Order XVII Rule 1 from the vice of Article 14 of the Constitution it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases as noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. [961-d, e, f] 13.2. However, grant of any adjournment let alone first, second or third adjournment is not a right of a party. The grant of adjournment by a Court has to be on a party showing special and extraordinary circumstances. It cannot be in routine. While considering the prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments. [961-g] 14.1. The omission of Order XVIII Rule 2(4) by the 1999 amendment does not take away the Court’s inherent power to call for any witness at any stage either suo moto or on the prayer of a party invoking the inherent powers of the Court. [962-b] 14.2. The object of filing written arguments or fixing time limit of oral arguments as laid down in Order XVIII Rule 2 sub-rules (3-A) to (3-D) is with a view to saving time of the Court. The adherence to the requirement of these rules is likely to help in administering fair and speedy justice. [962-c] 15. In Order VII Rule 14(4) the words `plaintiff’s witnesses’ have been mentioned as a result of mistake seems to have been committed by the legislature. The words ought to be `defendant’s witnesses’. Till the legislature corrects the mistake, the words `plaintiff’s witnesses’ would be read as `defendant’s witnesses’ in Order VII Rule 14(4). [963-b] 16. Sections 35, 35-A and 95 of the Code deal with three different aspects of award of cost and compensation. Under Section 95 cost can be awarded up to Rs. 50,000 and under Section 35-A, the costs awardable are up to Rs. 3,000. The award of the cost of the suit is in the discretion of the Court. In Sections 35 and 35-B, there is no upper limit of amount of cost awardable. [963-c, d, e] 17. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct the parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the Court fee, lawyer’s fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate Courts to follow. [963-g, h; 964-a-b] 18.1. The two months’ period mentioned in Section 80(1) of the Code has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as well. Wherever the statutory provision requires the service of notice as a condition precedent for filing of suit and prescribed period therefor, it is not only necessary for the governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. The Governments, Government departments or statutory authorities are defendants in large number of suits pending in various Courts in the country. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in a few cases where reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer as well. Proper reply can result in reduction of litigation between State and the citizens. In case proper reply is sent either the claim in the notice may be admitted or area of controversy curtailed or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of Section 80. [964-d, e, f, g] 18.1. These provisions cast an implied duty on all concerned Governments and State and statutory authorities to send appropriate reply to such notices. Having regard to the existing state of affairs, it is directed that all concerned Governments, Central or State or other authorities, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an Officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despites such nomination, if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him. [964-h; 965-a-c] 19. The power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. Curtailment of revisional jurisdiction of the High Court under Section 115 of the Code as amended by Amendment Act 46 of 1999 does not take away and could not have taken away the constitutional jurisdiction of the High Court. The power exists, untrammeled by the amendment in Section 115 and is available to be exercised subject to rules of self-discipline and practice which are well settled. [966-a, b] Surya Dev Rai v. Ram Chander Rai, [2003] 6 SCC 675, relied on. 20.1. The upper limit of 30 days fixed in Section 148 of the Code cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. The rigid operation of the Section would lead to absurdity. Section 151 has, therefore, to be allowed to fully operate. Extension beyond the maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for the reasons beyond the control of the party. However, Section 148 does not apply to cases to which the Limitation Act, 1963 is applicable. [966-d, e] 20.2. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days. [967-c] Mahanth Ram Das v. Ganga Das, AIR (1961) SC 882, relied on. 21.1. The period of seven days mentioned in Order IX Rule 5 is clearly directory. [967-d] 21.2. The stipulation in Rule 15 of Order XI confining the inspection of documents `at or before the settlement of issues’ instead of `at any time’ is also nothing but directory. It does not mean that the inspection cannot be allowed after the settlement of issues. [967-e] 22.1. The Committee has suggested that the Central Government has to provide substantial funds for establishing Courts which are subordinate to the High Court and the Planning Commission and the Finance Commission must make adequate provisions therefor. [968-f] 22.2. The Committee has also suggested that there must be `judicial impact assessment’, as done in the United States, whenever any legislation is introduced either in Parliament or State Legislatures. The financial memorandum attached to each Bill must estimate not only the budgetary requirement of other staff but also the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new Bill when it is passed by the legislature. The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many Courts are necessary, how many Judges and staff are necessary and what is the infrastructure necessary. So far in the last fifty years such a judicial impact assessment has never been made by any legislature or by Parliament in our country. [968-g, h; 969-a-b] 22.3. Having regard to the constitutional obligation to provide fair, quick and speedy justice, the Central Government is directed to examine the aforesaid suggestions and submit a report to this Court within four months. [969-c] 23. As can be seen from Section 89 of the Code, its first part uses the word `shall’ when it stipulates that the `Court shall formulate terms of settlement’. The use of the word `may’ in the later part of Section 89 only relates to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting Section 89 is that where it appears to the Court that there exists an element of a settlement which may be acceptable to the parties, they, at the instance of the Court, shall be made to apply their minds so as to opt for one or the other of the four Alternative Dispute Resolution methods mentioned in the Section and if the parties do not agree, the Court shall refer them to one or the other of the said modes. Section 89 uses both the word `shall’ and `may’ whereas Order X Rule 1-A uses the word `shall’ but on harmonious reading of these provisions it becomes clear that the use of the word `may’ in Section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of the ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarized in the terms of settlement formulated or reformulated in terms of Section 89. [971-b-e] 24.1. The Arbitration and Conciliation Act, 1996 governs a case where arbitration is agreed upon before or pending a suit by all the parties. The 1996 Act, however, does not contemplate a situation as in Section 89 of the Code where the Court asks the parties to choose one or the other ADRs including Arbitration and the parties choose Arbitration as their option. Of course, the parties have to agree for Arbitration. Section 82 of the 1996 Act enables the High Court to make Rules consistent with this Act as to all proceedings before the Court under the 1996 Act. Section 84 enables the Central Government to make rules for carrying out the provisions of the Act. The procedure for option to Arbitration among the four ADRs is not contemplated by the 1996 Act and, therefore, Sections 82 or 84 has no applicability where the parties agree to go for arbitration under Section 89 of the Code. For the purposes of Section 89 and Order X, Rules 1-A, 1-B and 1-C, the relevant Section in Part X of the Code enable the High Court to frame rules. If reference is made to Arbitration under Section 89 of the Code, the 1996 Act would apply only from the stage after reference and not before the stage of reference when options under Section 89 are given by the Court and chosen by the parties. On the same analogy, the 1996 Act in relation to Conciliation would apply only after the stage of reference to Conciliation. The 1996 Act does not deal with a situation where after the suit is filed, the Court requires a party to choose one or the other ADRs including Conciliation. Thus, for Conciliation also rules can be made under Part X of the Code for the purposes of procedure for opting for `Conciliation’ and up to the stage of reference to `Conciliation’. Thus, there is no impediment in the ADR rules being framed in relation to Civil Court as contemplated in Section 89 up to the stage of reference to ADR. The 1996 Act comes into play only after the stage of reference up to the award. [971-f-h; 972-a-d] P. Anand Gajapathi Raju v. P.V.G. Raju, [2000] 4 SCC 539, relied on. 24.2. Applying the same analogy, the Legal Services Authority Act, 1987 or the Rules framed thereunder by the State Governments cannot act as impediment in the High Court making rules under Part X of the Code covering the manner in which the option to Lok Adalat can be made being one of the modes provided in Section 89. The 1987 Act also does not deal with the aspect of exercising option to one of the four ADR methods mentioned in Section 89. Section 89 makes applicable the 1996 Act and the 1987 Act from the stage after the exercise of options and making of reference. [972-d-e] 25. It is evident that all the four alternatives, namely, Arbitration, Conciliation, judicial settlement including settlement through Lok Adalat and mediation are meant to be the actions of persons or institutions outside the Court and not before the Court. Order X, Rule 1-C speaks of the `Conciliation forum’ referring back the dispute to the Court. In fact, the Court is not involved in the actual mediation/conciliation. Section 89(2)(d) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the Court and the Court, after giving notice and hearing the parties, `effect’ the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. Further, there is no question of the Court which refers the matter to mediation/conciliation being debarred from hearing the matter where settlement is not arrived at. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be settlement and on that ground he cannot be treated to be disqualified to try the suit afterwards if no settlement is arrived at between the parties. [972-f, g, h; 973-a-b] 26.1. The Central Government is directed to examine the suggestion that expenditure on compulsory reference to conciliation/mediation be borne by the Government and if it is agreed, it shall request the Planning Commission and the Finance Commission to make specific financial allocation for the judiciary for including the expenses involved for mediation/conciliation under Section 89 of the Code. In case, the Central Government has any reservations, the same shall be placed before this Court within four months. [973-d] 26.2. With a view to enabling the Court to refer the parties to conciliation/mediation, where the parties are unable to reach a consensus on an agreed name, there should be a panel of well trained conciliators/mediators to which it may be possible for the Court to make a reference. It would be necessary for the High Courts and district Courts to take appropriate steps in the direction of preparing the requite panels. [973-f, g] 27. The Family Courts Act, 1984 applies the Code for all proceedings before it. Therefore, ADR rules made under the Code can be applied to supplement the rules made under the Family Courts Act and provide for ADR insofar as conciliation/mediation is concerned. [973-h; 974-a] 28. There is a fine distinction between conciliation and mediation. In `conciliation’ there is a little more latitude and conciliator can suggest some terms of settlements too. [974-b] 29. When the parties come to a settlement upon a reference made by the Court for mediation, as suggested by the Committee there has to be some public record of the manner in which the suit is disposed of and, therefore the Court has to first record the settlement and pass a decree in terms thereof and if necessary proceed to execute it in accordance with law. It cannot be accepted that such a procedure would be unnecessary. If the settlement is not filed in the Court for the purpose of passing of a decree, there will be no public record of the settlement. It is, however, a different matter if the parties do not want the Court to record a settlement and pass a decree and feel that the settlement can be implemented even without a decree. In such an eventuality, nothing prevents them from informing the Court that the suit may be dismissed as the dispute has been settled between the parties outside the Court. [974-c, d] 30. Regarding the refund of the Court fee where the matter is settled by the reference to one of the modes provided in Section 89 of the Code, it is for the State Governments to amend the laws on the lines of the amendment made in the Central Court Fee Act by Act 46 of the 1999 Amendment to the Code. The State Governments can consider making similar amendments in the State Court Fee legislations. [974-e, f] 31.1. The draft ADR and Mediation Rules have been finalised by the Committee and now it is for the respective High Courts to take appropriate steps for making rules in exercise of the rule-making power subject to modifications, if any, which may be considered relevant. [974-f, g] 31.2. The High Courts can examine the Model Case Flow Management Rules, discuss the matter and consider the question of adopting or making case law management and model rules with or without modification, so that a step forward is taken to provide to the litigating public a fair, speedy and inexpensive justice. [995-b] 32. It is hoped that the High Courts in the country would be in a position to examine the aforesaid rules expeditiously and would be able to finalise the Rules within a period of four months. The Registrar Generals, the Central Government and the State/Union Territories shall file the progress reports in regard to the action taken within a period of four months. [1014-b, d] K. Parasaran (NP), C.S. Vaidyanathan (NP), Arun Mohan (NP) and K.V. Viswanathan with them for the Petitioner. T. Raja, for the Petitioner in W.P.(C) No. 496/02. P.N. Puri, for the Petitioner in W.P.(C) No. 570/02. Dev Datt Kamat for Attorney General, Shreekant N. Terdal, T.L.V.Iyer, Ms. Priya Puri and Sanjeev Sachdeva with him for B.C.I. Mrs. Kiran Suri, Himanshu Buttan and Mali Santosh for Intervenor in W.P.(C) No. 496/02.=2005 AIR 3353, 2005(1 )Suppl.SCR929 , 2005(6 )SCC344 , 2005(6 )SCALE26 , 2005(6 )JT486
CASE NO.: Writ Petition (civil) 496 of 2002 PETITIONER: Salem Advocate Bar Association,Tamil Nadu RESPONDENT: Union of India DATE OF JUDGMENT: 02/08/2005 BENCH: Y.K.Sabharwal, D.M.Dharmadikhari & Tarun Chatterjee JUDGMENT: J U D G M E N T [With Writ Petition (Civil) No.570 of 2002] Y.K. Sabharwal, J. The challenge made to the constitutional validity of … Continue reading
Not unconstitutional = The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996= Apex court confirmed the High court order = The High Court has held that The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (for short “the BOCW Act”); The Building and Other Construction Workers
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1830 0F 2008 M/S DEWAN CHAND BUILDERS & — APPELLANT CONTRACTORS VERSUS UNION OF INDIA & ORS. — RESPONDENTS WITH CIVIL APPEAL NO. 1831 0F 2008 AND CIVIL APPEAL NO. 1832 0F 2008 J U D G M E N T D.K. … Continue reading
Indian Council of World Affairs Act, 2001-Constitutional validity of-Held : Act not violative of Articles 14, 19(l)(c) and (a)-Parliament had legislative competence to pass the Act in exercise of powers under Article 245 read with entries 62 and 63 of List I of Seventh Schedule- There is no violation of doctrine of separation of powers-Also legislation not vitiated by the malafides-Hence, Act constitutionally valid-Constitution of India, 1950-Articles 14, 19(1 (c), I9(l)(a), 245, 246 and List I Seventh Schedule, Entries 62 and 63. Constitution of India, 1950 : Article 19-Fundamental rights under-Conferred only on citizens of India- Rights do not stand on common pedestal but have varying dimensions and underlying philosophies-Nature of reasonable restrictions imposed- Discussed. Article 19-Constitutional validity of Legislative enactment-Held : Test of reasonableness is to be satisfied-Also substance of the legislation is to be kept in view-Further, in a challenge laid to the constitutional validity the onus of proof is on going shifting process. Article 19(l)(c)-Right to form associations or unions-Does not carry with it fulfillment of every object of an association for which it was formed-It would be contrary to the scheme of rights guaranteed by part III and those conferred by Article 19(l)(a) to (g)-However, rights flowing from the fundamental rights are sought to be included and qualifications are not merely those in Article 19(4)-Further right to form an association is tested by reference to Article 19(l)(c), validity of restriction by Article 19(4), and once individual citizens form an association and carry on activity, validity of restriction is tested by reference to Article 19(l) (g) read with Article 19(6). Articles 245 and 246-Seventh Schedule, List I- Entries 62 and 63- Indian Council of World Affairs-Institution of national importance- Hence, enactment protected by Entries 62 and 63 of List I of Seventh Schedule-Indian Council of World Affairs Act, 2001. Articles 245 and 246-Doctrine of Colourable Legislation-Scope of-Held : Deals with the question of legislative competence to enact a law-If legislature is competent the motives, bonafides or malafldes are not relevant. Articles 245, 246, 13, 50 and 226–Indian Council of World Affairs Act, 2001-Act incorporating same provisions as contained in Ordinance declared invalid by High Court-Effect of the judgment of High Court on the legislation-Held: Judgment of High Court being rendered erroneous, overrulling of which is specifically recorded, the constitutional validity of subsequent legislation is not to be decided on basis of the judgment of High Court-Further before error could be corrected in appeal, Ordinance lapsed rendering appeal infructuous-Also by the impugned Act Parliament not overruling the judgment of High Court nor declaring the same law to be valid which was pronounced to be void by the Court-Hence, Act not violative of doctrine of separation of powers. In 1943, an organisation named India Council of World Affairs was formed. The Association was registered as a society. The principal object of the Society was to promote the study of Indian and international questions so as to develop a body of informed opinion on world affairs and Indian relation thereto through study, research, discussion, lectures, exchange of ideas and information etc., with other bodies in India and abroad engaged in similar activities. The Government of India gave land on lease to the society. The Society was housed in a building constructed on the land. It had a library, an auditorium, conference room and other office accommodation. The Society was receiving grants from the Government from 1974 until 1987, whereafter it was discontinued. There was serious mal- administration and mismanagement committed by the society. On 30.6.1990, the President of India promulgated an Ordinance whereby a statutory body known as the Indian Council of World Affairs was constituted, having perpetual succession and a common seal, with power to hold and dispose of both movable and immovable properties. The constitutional validity of the Ordinance was challenged. Single Judge of High Court held the Ordinance as ultra vires the Constitution, violating Articles 14, 19(l)(a) and 19(l)(c) thereof and also beyond the legislative competence of Parliament. Union of India filed a letters patent appeal against the judgment. As the Bill seeking to replace the Ordinance by an Act of Parliament could not be passed, the Ordinance lapsed. Division Bench held that the appeal had become infructuous and dismissed the same. The President promulgated Ordinance No. 3 of 2000, on similar and identical terms of the 1990 Ordinance. However, the Ordinance lapsed. Ordinance No. 1 of 2001 was then promulgated seeking to revive Ordinance No. 3 of 2000, however, this Ordinance also lapsed. Thereafter, Indian Council of World Affairs Ordinance No. 3 of 2001 was promulgated. Writ petition (C) No. 276 of 2001 was filed challenging the constitutional validity of the Ordinance, 2001. During pendency of this petition, Ordinance came to be replaced by an Act of Parliament-Indian Council of World Affairs Act, 2001. Writ petition (C) No. 543 of 2001 was filed challenging the constitutional validity of the Act. Writ petitioners contended that by promulgating the impugned Ordinance and by enacting the impugned Act, the Central Government has taken over the Society as also its movable and immovable properties resulting in violation of petitioners’ right to freedom of speech and expression and to form associations or unions as conferred on citizens by Article 19(l)(a) and (c); that the provisions of the Societies Registration Act, 1860 were effective enough which, if invoked, could have taken care of the alleged grievances; that by passing the legislation, 1CWA institution was singled out though there were several other institutions run by societies or other organizations which committed more serious mismanagement and mal- administration; that the impugned Act is violative of Article 300A as it deprives the petitioners of the property vesting in the society; that the impugned Ordinance and the Act are malicious being motivated by political considerations; that the identically worded Ordinance having held to be unconstitutional and the judgment of High Court holding so having achieved a finality, the Parliament could not have re-enacted the contents of the vitiated Ordinance into an Act; and that the impugned Ordinance and the Act are violative of the doctrine of Separation of Powers. Respondent-Union of India contended that the earlier Ordinances have mere academic relevance in view of the Parliament having ultimately enacted the Act; that as the India Council of World Affairs is an institution of national importance, the impugned enactment is protected by Entries 62 and 63 of List I of the Seventh Schedule; that the Society has not been touched, it continues to survive as before and, therefore, there is no violation of fundamental right within the meaning of Article 19(l)(a) and (c); that the building and the library having built out of Government funds, subventions and some donations, the Society does not have any right in any of the properties; that the impugned Ordinance and Legislation were not politically motivated; that the decision of the Single Judge of High Court with respect to the identically worded Ordinance was incorrect; and that appeal filed was disposed of without any adjudication on merits since the High Court held that the appeal was rendered academic in view of the Ordinance having lapsed. =Disposing of W.P. (C) No. 276 of 2001 and dismissing W.P. (C) No. 543 of 2001, the Court HELD : 1. The challenge to the constitutional validity of the Indian Council of World Affairs Act, 2001 fails. [199-G] 2.1. At one time, the institution-ICWA was receiving financial aid from the Government of India. 1CWA has been declared to be an `institution of national importance’ by the Act of Parliament, thus the Parliament is competent to make any law governing the management, administration and affairs of such an institution. It is not the case of the petitioners that in enacting other provisions of the impugned Act, the Parliament has encroached upon any field of legislation not available to it. The legislation is clearly covered by Entries 62 and 63 of List I Schedule 7 of the Constiution. [199-H, 200-A, B, C] 2.2. The various Entries in the three Lists of the Seventh Schedule are legislative heads defining the fields of legislation. A large and liberal interpretation should be given to the scope of the Entries. Not only the main matter but also any in incidental and ancillary matters are to be included within the field of the entry. The settled rules of interpretation governing the Entries do not countenance any narrow and pedantic interpretation.[J200-C-E] Navinchandra Mafatlal v. CIT Bombay City, [1955] 1 SCR 829 and Sri Ram Ram Narain Medhi v. The State of Bombay, [1959] Supp. 1 SCR 989, relied on. British Coal Corporation v. The King, AIR (1935) PC 158 and United Provinces v. Atiqa Begum, AIR (1941) FC 16, referred to. 3.1. The Court, confronted with a challenge to the constitutional validity of any legislative enactment by reference to Article 19 would first ask what is the sweep of the fundamental right guaranteed to the citizens by the relevant sub-clause out of sub-clauses (a) to (g) of clause (1); if the right canvassed falls within the sweep and expanse of any of the sub- clauses of clause (1), then whether the impugned law imposes a reasonable restriction falling with the scope of clauses (2) to (6) respectively. However, if the right sought to be canvassed does not fall within the sweep of the fundamental rights but is a mere concomitant or adjunct or expansion or incidence of that right, then the validity thereof is not to be tested by reference to clauses (2) to (6). The test which it would be required to satisfy for its constitutional validity is one of reasonableness, or if it comes into conflict with any other provision of the Constitution. This has to be decided by keeping in view the substance of the legislation and not being beguiled by the mere appearance of the legislation. [181-B-D; 187-F] The State of Madras v. V.G. Row, [1952] SCR 597, followed. H.C. Narayanappa & Ors. v. State of Mysore & Ors., [1960] 3 SCR 742, relied on. State of West Bengal v. Subodh Gopal Bose & Ors., [1954] SCR 587, referred to. 3.2. In spite of there being a general presumption in favour of the constitutionality of the legislation, in a challenge laid to the validity of any legislation allegedly violating any right or freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation having been made out, the onus would shift upon the respondent- State to show that the legislation conies within the permissible limits of the most relevant out of clauses (2) to (6) of Article 19 of the Constitution, and that the restriction is reasonable. The Court would expect the State to place before it sufficient material justifying the restriction and its reasonability. On the State succeeding in bringing the restriction within the scope of any of the permissible restrictions, such as, the sovereignty and integrity of India or public order, decency or morality etc., the onus of showing that restriction is unreasonable would shift back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be required to substantiate the plea of unreasonability. Thus the onus of proof in such cases is an on-going shifting process to be consciously observed by the court. [187-B-E] Charanjit Lal Chowdhury v. The Union of India & Ors., [1950] SCR 869; Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) & Anr., [1962] Supp. 1 SCR 156, relied on. 3.3. A right to form associations or unions guaranteed under Article 19(l) (c) does not include within its ken as a fundamental right a right to form associations or unions for achieving a particular object or running a particular institution, the same being a concomitant or concomitant to a concomitant of a fundamental right, but not the fundamental right itself. The associations or unions of citizens cannot further claim as a fundamental right that it must also be able to achieve the purpose for which it has come into existence so that any interference with such achievement by law shall be unconstitutional, unless the same could be justified under Article 19(4) as being a restriction imposed in the interest of public order or morality. It would be contradictory to the scheme underlying the text and the frame of the several fundamental rights guaranteed by Part III and the scheme of the guarantees conferred by sub- clauses (a) to (g) of clause (1) of Article 19. [173-E-H] 3.4. Even a very liberal interpretation cannot lead to the conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise. The right to strike or the right to declare a lock-out may be controlled or restricted by appropriate industrial legislation, and the validity of such legislation would have to be tested not with reference to the criteria laid down in clause (4) of Article 19 but by totally different considerations. A right guaranteed by Article 19(l)(c) on a literal reading thereof can be subjected to those restrictions which satisfy the test of clause (4) of Article 19. The rights not included in the literal meaning of Article 19(l)(c) but which are sought to be included therein as flowing therefrom i.e. every right which is necessary in order that the association, brought into existence, fulfills every object for which it is formed, the qualifications therefor would not merely be those in clause (4) of Article 19 but would be more numerous and very different. Restrictions which bore upon and took into account the several fields in which associations or unions of citizens might legitimately engage themselves, would also become relevant. [175-D-H] 3.5. A perusal of Article 19 with certain other Articles like 26, 29 and 30 shows that while Article 19 grants rights to the citizens as such, the associations can lay claim to the fundamental rights guaranteed by Article 19 solely on the basis of there being an aggregation of citizens, i.e., the rights of the citizens composing the body. As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizen or claim freedom from restrictions to which the citizens composing it are subject. While right to form an association is to be tested by reference to Article 19(l)(c) and the validity of restriction thereon by reference to Article 19(4), once the individual citizens have formed an association and carry on some activity, the validity of legislation restricting the activities of the association shall have to be judged by reference to Article 19(l)(g) read with 19(6). A restriction on the activities of the association is not a restriction on the activities of the individual citizens forming membership of the association. [174-B-C, 174-A-B] Smt. Damyanti Naranga & Anr: v. The Union of India and Ors., 11971] 3 SCR 840 and Asom Rashtrabhasha Prachar Samiti, Hedayatpur- Gauhati-3 and Anr. v. State of Assam and Ors., [1989] Supp. SCR 160, distinguished. Smt. Maneka Gandhi v. Union of India & Am:, [1978] 1 SCC 248; All India Bank Employees’ Association v. National Industrial Tribunal, [1962] 3 SCR 269; M/s. Raghubar Dayal Jai Parkash & Anr: v. Union of India & Anr., [1962] 3 SCR 547; Azeez Basha v. Union of India, [1968] 1 SCR 833; D.A. V. College Jullundur etc., v. The State of Punjab and Ors., [1971] 2 SCC 269; Sethapathi Nageswara Rao & Ors. v. The Government of A. P. & Ors., AIR (1978) A.P. 121 (F.B.); Harakh Bhagat and Anr. v. Assistant Registrar, Co- operative Societies, Barh, and Ors., AIR (1968) Patna 211; S.P. Motta v. Union of India & Ors., [1983] 1 SCC 51 and L.N. Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar & Ors., [1988] 2 SCC 433, referred to. 3.6. As soon as citizens form a company, the rights are guaranteed to them by Article 19(l)(c). Once a company or a corporation is formed, the business carried on by the said company or corporation is the business of the company or corporation, and is not the business of the citizens who get the company or corporation formed or incorporated, and the rights of the incorporated body must be judged on that footing alone and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. The same principle would apply to a society registered under the Societies Registration Act, 1860. [177-D-F] Tata Engineering and Locomotive Co. Ltd & Anr. v. The State and Ors., [1964] 6 SCR 885, relied on. 3.7. The pith and substance of the impugned legislation is to take over an institution of national importance. As the formation of the society, which is a voluntary association, is not adversely affected and the members of the society are free to continue with such association, the validity of the impugned legislation cannot be tested by reference to sub-clauses (a) and (c) of clause (1) of Article 19. The activity of the society which was being conducted through the institution ICWA has been adversely affected and to that extent the validity of the legislation shall have to be tested by reference to sub-clause (g) of clause (1) of Article 19. The activity was of the society and the society cannot claim a fundamental right. Even otherwise the impugned legislation is a reasonable legislation enacted in the interest of the general public and to govern an institution of national importance. It is valid. It does not offend the right guaranteed by Article 19(l)(c). It also does not in any manner deprive the members of the Society of their freedom of speech and expression under Article 19(l)(a). [184-G-H, A-B; 187-G] 4.1. No other institution in the grip of more serious mismanagement and mal-administration is named or particularized so as to be comparable with ICWA and there can be a legislation in respect of a single institution as is clear from the language itself of Entries 62 and 63 of List I. A single institution is capable of being treated as a class by itself for the purpose of legislation if there are special circumstances or reasons which are applicable to that institution and such legislation would not incur the wrath of Article 14. [192-G-H; 193-A] 4.2. Merely because an alternative action under the Societies Registration Act, 1860 could have served the purpose, a case cannot be and is not made out for finding fault with another legislation if the same be within the legislative competence of the Parliament. The Parliament had legislative competence to pass the legislation in exercise of its legislative power under Article 245 of the Constitution read with Entries 62 and 63 of List I. The legislation cannot be said to be arbitrary or violative of Article 14. [192-B-C] S.P. Mittal v. Union of India & On., [1983] 1 SCC 51; Ram Krishna Dalmia v. Justice S.R. Tendolkar, [1959] SCR 279; Raja Birakishore v. State of Orissa, [1964] 7 SCR 32 and Chiranjit Lal Chowdhuri v. Union of India, [1950] SCR 869, referred to. 5. The exercise of testing the vires of the impugned legislation by reference to Article 300A of the Constitution is uncalled for in the instant petition since the right to property has ceased to be a fundamental right, and it is doubtful if it could be enforced by a petition under Article 32 of the Constitution; that a case of violation of Article 300A the way it is canvassed is not taken up in the writ petition; that the petition raises disputed questions of facts; that the Union of India has taken over the institution by enasting a law which is within the legislative competence of the Parliament; and that there is not one document of title produced by the petitioners in support of their claim to the property. [191-D; 190-H; 191-A-C] 6. The whole doctrine of Colourable legislation resolves itself into the question of the competency of a particular legislature to enact a particular law. It does not involve any question of bona fides or mala fides on the part of the legislature. If the legislature is competent to pass a particular law, motives which impelled it to act are irrelevant and if incompetent, the question of motive does not arise at all. In the instant case, the Parliament has the requisite competence to enact the impugned Act, the enquiry into the motive which persuaded the Parliament into passing the Act-are not relevant. [168-E-G]. K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, [1954] SCR 1 and Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) & Anr:, [1962] Supp. 1 SCC 156, referred to. 7.1. Filing of an appeal destroys the finality of the judgment under appeal. Upon the lapsing of the earlier Ordinance pending an appeal before a Division Bench, appeal being rendered infructuous, the judgment of Single Judge about the illegality of the earlier Ordinance, cannot any longer bar this Court from deciding about the validity of a fresh law on its own merits, even if the fresh law contains similar provisions. [198-F; 199-A-B] 7.2. The judgment of High Court is not correct and the overruling of the same is specifically recorded. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the constitutional validity of the subsequent legislation is not available to be decided on the basis of the previous judgment. [195-D] 7.3. A legislation which on an independent scrutiny is held to be within the legislative competence of the enacting legislature cannot be struck down merely because the legislature has re-enacted the same legal provisions into an Act which, ten years before, were incorporated in an Ordinance and were found to be unconstitutional in an erroneous judgment of the High Court and before the error could be corrected in appeal the Ordinance itself lapsed. By the impugned Act the Parliament has not overruled the judgment of the High Court nor has it declared the same law to be valid which has been pronounced to be void by the court. It would have been better if before passing the Bill into an Act the attention of the Parliament was specifically invited to the factum of an earlier part materia Ordinance having been annulled by the High Court. The impugned Act is not liable to be annulled on the ground of violation of the doctrine of Separation of Powers. [199-C-G] Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors., [1969] 2 SCC 283; M/A. Misrilal Jain v. State of Orissa & Anr:, [1977) 3 SCC 212; Madan Mohan Pathak & Anr. v. Union of India & Ors., [1978] 2 SCC 50; Union of India & Anr. v. Raghubir Singh (Dead) by Lrs. etc., [1989] 2 SCC 754; Indian Aluminium Co. & Ors. v. State of Kerala& Ors., [1996] 7 SCC 637; Welfare Association A. R.P. Maharashtra & Anr. v. Ranjit P. Gohil & Ors., JT (2003) 2 SC 335; People’s Union for Civil Liberties (PUCL) & Anr. v. Union of India & Anr., [2003] 4 SCC 399 and Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., [1975] Supp. SCC 1, referred to. A Judge on Judging : The Role of a Supreme Court in Democracy- By President Aharon Barak, Supreme Court of Israel, Harvard Law Review, Vol. 116, No. 1, November 2002, p. 135, referred to. 8. All the grounds taken in writ petition challenging the Indian Council of World Affairs Ordinance, 2001 have been reiterated and reurged in the writ petition challenging the Indian Council of World Affairs Act 2001. As the merits of the pleas raised on behalf of the writ petitioners are available to be considered in the latter writ petition, the writ petition challenging the Ordinance is rendered infructuous and is disposed of without any adjudication on merits. The Ordinance having ceased to operate, the factum of promulgation of such Ordinance remains only a part of the narration of events. Further no such action was taken thereunder the legality whereof may survive for adjudication. [168-A-C] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 276 of 2001. WITH W.P. (C) No. 543 of 2001. =2004 AIR 1295, 2003(6 )Suppl.SCR151 , 2004(1 )SCC712 , 2003(10 )SCALE141 ,
CASE NO.: Writ Petition (civil) 276 of 2001 Writ Petition (civil) 543 of 2001 PETITIONER: Dharam Dutt & Ors. RESPONDENT: Union of India & Ors. DATE OF JUDGMENT: 24/11/2003 BENCH: R.C. LAHOTI & BRIJESH KUMAR. JUDGMENT: J U D G M E N T R.C. LAHOTI, J. W.P. (C) No.276/2001 filed on June 22, 2002, … Continue reading
Muslim Law : Muslim Women (Protection of Rights on Divorce) Act, 1986: Constitution validity-Act excluded Muslim divorced woman from the provisions of Section 125 Cr.P.C.-Further, under S.3 Muslim divorced woman was entitled to reasonable and fair provision and maintenance within the period of iddat by her former husband-Held: The Act is constitutionally valid-Reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period-Liability of Muslim husband to pay maintenance to his divorced wife is not confined to iddat period-A divorced Muslim woman, who has not remarried, may proceed against her relatives for her maintenance-If relatives unable to pay maintenance State Wakf Board to pay such maintenance-The Act does not offend Arts. 14, 15 and 21-Constitution of India, 1950 Arts. 14, 15 and 21-Code of Criminal Procedure, 1973, S.I25. Interpretation of Statutes: Rule of construction-Provisions of a Statute-Possibility of two constructions-Preference of-Held: That construction, if permissible, which makes the Statute effective and operative has to be preferred-Whereas that construction which renders the Statute ultra vires or unconstitutional has to be rejected. Words & Phrases : “Divorce woman”: and “iddat period”-Meaning of-In the context of S.2(a) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986. “Maintenance:, “provision” and “mahr”-Meaning of-In the context of S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Petitioners filed a writ petition before this Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986. On behalf of the petitioners it was contended that the Act was un-Islamic, unconstitutional and it undermined the secular character which was the basic feature of the Constitution; that there was no rhyme or reason to deprive the Muslim women from the applicability of Section 125 of the Code of Criminal Procedure, 1973 and consequently the Act must be held to be discriminatory and violative of Articles 14 and 21 of the Constitution. On behalf of the respondents it was contended that a reasonable and fair provision and maintenance for the divorced Muslim woman had been provided under Section 3 of the Act; that personal law was a legitimate basis for discrimination; that the Act was good enough to take care of the vagrancy of Muslim divorced woman; that the interpretation of the Act should be in consonance with the Muslim Personal Law; that the social ethos of the Muslims should be borne in mind while interpreting the Act; that the Act resolved all issues and, therefore, the Act was not invalid or unconstitutional. =Dismissing the petition, the Court HELD : 1. In interpreting the provisions where matrimonial relationship is involved, one has to consider the social conditions prevalent in the Indian society. In Indian society, whether one belongs to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Indian society is male dominated both economically and socially and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body , and her investment in the marriage is her entire life – a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner one could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer,. It is a small solace to say that such a woman should be compensated in terms of money towards her livehood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the Wakf Boards. Such an approach appears to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, one has to interpret the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in question. [435-B-G] 2. The provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provisions for maintenance. The word `provision’ indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths and other articles. The Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3); but nowhere the Parliament has provided that reasonable and fair maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. [439- A-D] 3.1. The provisions of the Act depriving the divorced Muslim woman of a right to maintenance from her husband providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 of the Code of Criminal Procedure, 1973. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code, a divorced Muslim woman has obviously been unreasonably discriminated against and has got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and discrimination on the ground of religion as the act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. [442-E- H] 3.2. It is well settled that on a rule of construction a given statute will become `ultra vires or `unconstitutional’ and, therefore, void, whereas on another rule of construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that Legislature does not intend to enact unconstitutional laws. The latter interpretation should be accepted and, therefore, this interpretation results in upholding the validity of the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way. [443-A-B] 4. While upholding the validity of the Act, the conclusions are summed up as follows : (a) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the act. (b) Liability of Muslim husband to his divorced wife arising under Section 3(l)(a) of the Act to pay maintenance is not confined to iddat period. [444-G-H] (c) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (d) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. [445-A-B] Mohd Ahmed Khan v. Shah Bano Begum, [1985] 2 SCC 556; Bai Tahira v. ALi Hussain Fidaalli Chothia, [1979] 2 SCC 316; Fuzlunbi v. K. Khader Vali, [1980] 4 SCC 125; Aga Mahomed Jaffer Bindaneem v. Koulsom Bee Bee, 241A 196; Olga Tellis v. Bombay Municipal Corporation, [1985] 3 SCC 545 and Maneka Gandhi v. Union of India, [1978] 1 SCC 248, referred to. Arab Ahmadhia Abdulla v. Arab Bail Mohmuna Saiyadhbhai, AIR (1988) (Guj) 141; Ali v. Sufaira, [1988] 3 Crimes 147, K. Kunhashed Hazi v. Amma, (1995) Crl. L.J. 337; K. Zunaideen v. Ameena Begum, (1998) II DMC 468, Karim Abdul Shaik v. Shenaz, Karim Shaik, (2000) Crl. L.J. 3560, Jaitunbi Mubarak Shaikh v. Mubarak Fakruddhi Shaikh, (1999) M.L.J. 694 and Kaka v. Hassan Bano, II (1998) DMC 85 (Pun) (FB), approved. Umar Khan Bahamami v. Fathimnurisa, (1990) Cr. L.J. 1364; Abdul Rashid v. Sultana Begum, [1992] Cr.L.J. 76; Abdul Haq v. Yasima Talat, (1998) Cr. L.J. 3433 and Md. Marahim v. Raiza Begum, (1993) 1 DMC 60, overruled. CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 868 of 1986. Under Article 32 of the Constitution of India. WITH W.P.(C) Nos. 996, 1001,1055, 1062, 1236, 1259, 1281/86, TC. (C) No. 22/87, 86, 68/88, T.P. (C) No. 276-77/87, Crl. A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, W.P. (C) No. 12273/84 SLP (Crl.) No. 2513/94, Crl. A. Nos. 508, 843/95, 102-103/89, 292/90, SLP(Crl.) Nos. 2165/96, 3786, 2462/99. =2001 AIR 3958, 2001( 3 )Suppl.SCR 419, 2001( 7 )SCC 740, 2001( 6 )SCALE537 , 2001( 8 )JT 218
CASE NO.: Writ Petition (civil) 868 of 1986 PETITIONER: DANIAL LATIFI & ANR. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 28/09/2001 BENCH: G.B.PATTANAIK & S.RAJENDRA BABU & D.P.MOHAPATRA & DORAISWAMY RAJU & S.V.PATIL JUDGMENT: JUDGMENT With [WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86, 1281/86, T.C. (C) 22/87, 86/88, 68/88, T.P. (C) No. 276-77/87, Crl. … Continue reading
This is a classic example where despite having succeeded in the proceedings before the High Court, the Appellants have not got the fruits of their 2 victory. Although, initially there were five petitioners in the two Special Leave Petitions (now appeals) which we are considering, during the pendency of the matters all the petitioners, other than Dr. Amish Kiran Bhai Mehta, opted for separate disciplines and are no longer interested in admission to the Super Speciality Courses concerned.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.7037-7038 OF 2011 (Arising out of SLP(C)Nos.11320-11321 of 2011) DR. PUNEET GULATI & ORS. ETC. ETC. … APPELLANTS Vs. STATE OF KERALA & ORS. ETC. ETC. … RESPONDENTS O R D E R ALTAMAS KABIR, J. 1. Leave granted. 2. This is a … Continue reading
Dr. Svetoslav Roerich, a Russian born, was an internationally acclaimed painter, artist and recipient of many national and international awards including Padma Bhushan from the President of India in the year 1961. Smt. Devika Rani Roerich, grand niece of Rabindranath Tagore had made valuable contributions and outstanding services to the Indian Motion Pictures and Film Industry, was known to be the “First Lady of the Indian Screen”. She was awarded Padmashri by the President of India in the year 1958 and was the recipient of the first Dada Saheb Phalke Award and the Soviet Land Nehru Award in the year 1989.
1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6520 OF 2003 WITH CIVIL APPEAL NO.6521-6537 OF 2003 AND CIVIL APPEAL NO.6538 OF 2003 K.T. Plantation Pvt. Ltd. & Anr. … Appellants Vs State of Karnataka …Respondent J U D G M E N T K.S. RADHAKRISHNAN, J. The constitutional validity of … Continue reading
advocatemmmohan 