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Swatanter Kumar
Arbitration and Conciliation Act, 1996: s. 45 – Reference to arbitration under – Scope of – International commercial arbitration – Multi-party agreements – Joint venture agreements with different parties – Some of the agreements contained arbitration clause while the others did not – Dispute between parties leading to filing of suit – High Court referred the entire suit (including the non-signatory parties to the arbitration agreement) for arbitration u/s. 45 – Joinder of non-signatory parties to arbitration – Permissibility – Held: Joinder of non-signatory parties to arbitration is permissible – They can be referred to arbitration, provided they satisfy the pre-requisites u/ss. 44 and 45 r/w Schedule I of the Act – The cases of group companies or where various agreements constitute a composite transaction with intrinsically interlinked cause of action, can be referred to arbitration, even if the disputes exist between signatory or even non-signatory parties – However, the discretion of the court has to be exercised in exceptional, limiting, befitting and cases of necessity and very cautiously – Expression `any person claiming through or under him’ used in s. 45, takes within its ambit persons who are in legal relationships via multiple and multi-party agreements, though they may not all be signatories to the arbitration clause – In the present case, the corporate structure of the companies demonstrates a definite legal relationship between the parties to the lis or persons claiming under them – Their contractual relationship spells out the terms, obligations and roles of the respective parties which they were expected to perform for attaining the object of successful completion of the joint venture agreement – All the other agreements were intrinsically inter-connected with the mother agreement – All the agreements were part of a composite transaction to facilitate implementation of principal agreement – Hence, all the parties to the lis were covered under expression “any person claiming through or under” the principal (mother) agreement – Arbitration clause in the principal agreement was comprehensive enough to include all disputes arising “under and in connection with” principal agreement – Conduct of parties and even subsequent events show that the parties had executed, intended and actually implemented composite transaction contained in principal/mother agreement – Hence, direction to refer the disputes to arbitration -Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) – Article II (3) – ICC Rules – UNCITRAL Model Rules. s. 45 – Issues under – Determination of – Issue of jurisdiction should be decided at the beginning of the proceedings itself and they should have finality – Determination of fundamental issues as contemplated u/s. 45 at the very first instance is not only appropriate but is also the legislative intent – Jurisdiction. Code of Civil Procedure, 1908 – s. 9 – Jurisdiction of civil courts – Jurisdiction of the court and the right to a party emerging from s. 9 is not an absolute right, but contains inbuilt restrictions – Civil courts have jurisdiction to try all suits except those which is either expressly or impliedly barred – The provisions of s. 45 of the 1996 Act would prevail over the provisions of CPC – Arbitration and Conciliation Act, 1996 – s. 45. Doctrines/Principles: `Group of Companies’ Doctrine; Principle of `incorporation by reference’; Principle of `composite performance’; Principle of `agreements within an agreement’ and Principle of `Kompetenz kompetenz’ – Discussed. Precedent – Observations – Precedential value – Held: The observations to be construed and read to support the ratio decidendi – They would not constitute valid precedent as it would be hit by the doctrine of stare decisis – Doctrine – Constitution of India, 1950 – Art. 141. Words and Phrases: Expression `connection’ – Meaning of. The questions which inter alia arose for consideration in the present appeals were: (1) What is the ambit and scope of Section 45 of the Arbitration and Conciliation Act, 1996; (2) Whether in a case where multiple agreements were signed between different parties some containing an arbitration clause and others not and where the parties were not identically common in proceedings before the Court (in a suit) and the arbitration agreement, a reference of disputes as a whole or in part could be made to the arbitral tribunal, more particularly, where the parties to an action were claiming under or through a party to the arbitration agreement; and (3) Whether the principles enunciated in the case of *Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya was the correct exposition of law.= Dismissing the appeals, the Court HELD: 1.1 Section 45 is a provision falling under Chapter I of Part II of the Arbitration and Conciliation Act, 1996 which is a self-contained Code. The expression `person claiming through or under’ would mean and take within its ambit multiple and multi-party agreements, though in exceptional case. Even non-signatory parties to some of the agreements can pray and be referred to arbitration provided they satisfy the pre-requisites under Sections 44 and 45 r/w Schedule I. Reference of non-signatory parties is neither unknown to arbitration jurisprudence nor is it impermissible. [Para 167] 1.2 An arbitration agreement, under Section 45 of the 1996 Act, should be evidenced in writing and in terms of Article II of Schedule 1, an agreement in writing shall include an arbitral clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams. Thus, the requirement that an arbitration agreement be in writing is an expression incapable of strict construction and requires to be construed liberally, as the words of this Article provide. Even in a given circumstance, it may be possible and permissible to construe the arbitration agreement with the aid and principle of `incorporation by reference’. Though the New York Convention is silent on this matter, in common practice, the main contractual document may refer to standard terms and conditions or other standard forms and documents which may contain an arbitration clause and, therefore, these terms would become part of the contract between the parties by reference. The solution to such issue should be case-specific. The relevant considerations to determine incorporation would be the status of parties, usages within the specific industry, etc. Cases where the main documents explicitly refer to arbitration clause included in standard terms and conditions would be more easily found in compliance with the formal requirements set out in the Article II of the New York Convention than those cases in which the main contract simply refers to the application of standard forms without any express reference to the arbitration clause. [Para 72] M.V. “Baltic Confidence” and Anr. v. State Trading Corporation of India Ltd. and Anr. (2001) 7 SCC 473: 2001 (1) Suppl. SCR 699; Olympus Superstructure Pvt. Ltd. v. Meena Vijay Khetan and Ors. (1999) 5 SCC 651: 1999 (3) SCR 490 – relied on 1.3 Under the Indian Law, greater obligation is cast upon the Courts to determine whether the agreement is valid, operative and capable of being performed at the threshold itself. Such challenge has to be a serious challenge to the substantive contract or to the agreement, as in the absence of such challenge, it has to be found that the agreement was valid, operative and capable of being performed; the dispute would be referred to arbitration. [Para 78] State of Orissa v. Klockner and Company and Ors. AIR 1996 SC 2140: 1996 (1) Suppl. SCR 368 – relied on. Abu Dhabi Gas Liquefaction Co. Ltd. v. Eastern Bechtel Corp.(1982) 2 Lloyd’s Rep. 425, CA – referred to. Law and Practice of International Commercial Arbitration by Alan Redfern and Martin Hunder (Fourth Edition) 1.4 The legislative intent and essence of the 1996 Act was to bring domestic as well as international commercial arbitration in consonance with the UNCITRAL Model Rules, the New York Convention and the Geneva Convention. The New York Convention was physically before the Legislature and available for its consideration when it enacted the 1996 Act. Article II of the Convention provides that each contracting State shall recognize an agreement and submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not concerning a subject matter capable of settlement by arbitration. Once the agreement is there and the Court is seized of an action in relation to such subject matter, then on the request of one of the parties, it would refer the parties to arbitration unless the agreement is null and void, inoperative or incapable of performance. Still, the legislature opted to word Section 45 somewhat dissimilarly. Section 8 of the 1996 Act also uses the expression `parties’ simpliciter without any extension. In significant contra-distinction, Section 45 uses the expression `one of the parties or any person claiming through or under him’ and `refer the parties to arbitration’, whereas the rest of the language of Section 45 is similar to that of Article II(3) of the New York Contention. The Court cannot ignore this aspect and has to give due weightage to the legislative intent. It is a settled rule of interpretation that every word used by the Legislature in a provision should be given its due meaning. The Legislature intended to give a liberal meaning to this expression. [Paras 88 and 89] 1.5 The language and expressions used in Section 45, `any person claiming through or under him’ including in legal proceedings may seek reference of all parties to arbitration. Once the words used by the Legislature are of wider connotation or the very language of Section is structured with liberal protection then such provision should normally be construed liberally. [Para 90] 1.6 In view of the legislative object and the intent of the framers of the statute, i.e., the necessity to encourage arbitration, the Court is required to exercise its jurisdiction in a pending action, to hold the parties to the arbitration clause and not to permit them to avoid their bargain of arbitration by bringing civil action involving multifarious cause of action, parties and prayers. [Para 91] 1.7 The scope of concept of `legal relationship’ as incorporated in Article II(1) of the New York Convention vis-
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7134 OF 2012 (Arising out of SLP (C) No.8950 of 2010) Chloro Controls (I) P. Ltd. … Appellant Versus Severn Trent Water Purification Inc. & Ors. … Respondents WITH CIVIL APPEAL NOS. 7135-7136 OF 2012 (Arising out of SLP (C) No.26514-26515 … Continue reading
The ambit and scope of power of New Okhla Industrial Development Authority (for short, the `Development Authority’) to permit users, other than residential, in the sectors specifically earmarked for `residential use’ in the Master Plan of the New Okhla Industrial Development Area (for short, the 2 `Development Area’) is the basic question that falls for consideration of this Court in this bunch of appeals= A few officers of the Development Authority cannot collectively act in violation of the law and frustrate the very object and purpose of the Master Plan in force, Regulations and provisions of the Act. 56. For the reasons afore-recorded, we would dispose of the appeals of the Development Authority, the appellants/occupiers/ lessees, interveners and occupants in the following terms:- 1. That banking or nursing homes or any other commercial activity is not permitted in Sector 19 and for that matter, in any sector, in the Development Area earmarked for `residential use’. 2. That the 21 banks and the nursing homes, which are operating in Sector 19 or any other residential sector, shall close their activity forthwith, stop misuse and put the premises to residential use alone, within two months from the date of pronouncement of this judgment. 3. That lessees of the plots shall ensure that the occupant banks, nursing homes, companies or persons carrying on any commercial activity in the residential sector should stop such activity and shift the same to the appropriate sectors i.e. commercial, commercial pockets in
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6962 of 2005 R.K. Mittal & Ors. … Appellants Versus State of U.P. & Ors. … Respondents WITH CIVIL APPEAL NO.6963 OF 2005 AND CIVL APPEAL NOS.10535 &10536 OF 2011 (Arising out of SLP (C) No.24029 of 2005 and 9150 of 2007) … Continue reading
Suit: Suit for declaration of title and injunction – Plaintiffs claiming to be owners of the suit land – Reliance placed on various documents – Trial court decreeing the suit – High Court setting aside the decree – On appeal, held: The suit land was a Government land – The land was not subjected to any land revenue – Documents relied on, do not establish title of the plaintiffs on the lands – Mysore Revenue Manual – Paras 236 and 376 – Karnataka Land Revenue Act, 1961 – s. 67. Suit for declaration of title – Against Government and against private individual – Difference between – discussed. Suit for declaration of title against Government – Grant of decree – Criteria for – Discussed. Suit for declaration of title against Government – Onus to prove title – Held: It is for the claimants to establish their title to suit properties – Weakness of Government’s defence or absence of contest, are not sufficient to decree declaratory suits against the Government. Adverse possession – Right adverse to the Government – Claim of – Held: To claim adverse possession, claimant’s possession should be actual, open and visible, hostile to the owner and continued during entire period necessary to create bar under the law of limitation. Appellant-plaintiffs filed the present suit for declaration of title and consequential relief of permanent injunction in respect of the suit land (Survey Nos. 30 and 31), against the respondent-defendants. Appellants claimed to be owners of a tank in Survey No. 30 and a barren land in Survey No. 31. They claimed that the suit land was part of the land owned by their ancestors, and they were in continuous possession of the suit land as owners. The appellants filed a suit for permanent injunction when City Improvement Trusts Board attempted to interfere with their possession of the tank (Survey No. 30). Subsequently the present suit was filed wherein the appellants-plaintiff claimed title over the suit land Survey Nos. 30 and 31, placing reliance on Exs. P1, P2, P10, P11, P12 and P18. During pendency of the present suit, first suit was dismissed. Appeal against the order was also dismissed by High Court observing that the judgment would not affect the pending (present) suit. Plea of the respondent-defendants was that Survey No.30 was a Government tank shown as Kharab land in the revenue records and Survey No. 31 was also a government barren land shown in revenue records as Government Kharab land. Trial court decreed the suit holding that appellants had made out their possession and title with regard to the suit property. High Court, in appeal, set aside the decree. Hence the present appeals. =Dismissing the appeals, the Court HELD: 1.1. The appellants were not registered as the owners or khatedars or occupiers of the suit lands in any revenue records. They did not have any document of title referring to the suit properties. The appellants did not have possession. Even assuming that the tank in Survey No. 30 was repaired/ maintained by the ancestors of plaintiff at some point of time, there is no document to show that the tank was used, maintained or repaired by the appellants or their predecessors during more than half a century before the filing of the suit. The suit has to fail. [Para 21] [926-B-D] 1.2. The High Court, being the first appellate court is the final court of fact. It has, after examining the evidence exhaustively recorded a finding that the appellants have not established their title or possession. There is no error in the findings and conclusions of the High Court. The appellants who came to court claiming title, not having established title, their suit is liable to be dismissed. [Para 19] [925-D-E] 2.1. Suits for declaration of title against the Government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the Government. All lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land. This presumption available to the Government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against Government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by Government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the Government. Any loss of Government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. [Para 15] [921-G-H; 922-A-E] 2.2. Many civil courts deal with suits for declaration of title and injunction against Government, in a casual manner, ignoring or overlooking the special features relating to Government properties. Instances of such suits against Government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the Government contests the suit or not, before a suit for declaration of title against a Government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the Government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the Government, grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. [Para 16] [922- G-H; 923-A-B] 2.3. Section 67 of Karnataka Land Revenue Act, 1961 declares that all tanks and all lands which are not the property of any person are the property of the State Government. Weakness of Government’s defence or absence of contest, are not therefore sufficient to decree declaratory suits against the Government. It is for the appellants to establish their title to the suit properties. [Para 18] [924-E; 925-B-C] 2.4. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the Government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the Government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the Revenue Records or Municipal Records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). [Para 16] [923-C-E] 2.5. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the Government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the Government. [Para 17] [923-F-H; 924-A-B] On facts: 3.1. Exhibit P18 is an extract of the register maintained by the Public Works Department showing the details of tanks in Bangalore Division. The said extract is in respect of Serial No.279 from the said register relating to a tank described as `Maistry Kere’ or `Maistry Palyada Kere’ in Jakkasandra village, the extent of the water body being 11 acres. The name of the tank is followed by the word `private’ in the register and gives particulars of the Achkat area of the tank (that is area of land irrigated by the said tank) in the year 1906-07. The appellants took the plea that the description of the tank as `private’ in the Tank Register would demonstrate that the tank did not belong to the Government and that it was privately owned. The High Court however held that the mere use of the word `private’ after the description of the tank, will not establish appellant’s title or possession in regard to Survey No.30. [Para 5] [916-E-G] 3.2. A reading of Para 376 of the Mysore Revenue Manual shows that a private tank can be constructed by a private individual, either in his own land or on Government unoccupied land. It also shows that private individuals may restore Government tanks. Therefore it follows that when a tank is described as `private’ in the Tank Register, that by itself will not establish that the land where the tank is situated is private land. When a tank enumerated in the Tank Register maintained by the Government, adds to the description of the tank, by the word `private’, it merely shows that the tank in question had been constructed by a private individual but it does not lead to the inference that the land on which the tank is constructed belonged to a private individual. [Para 7] [917-G-H; 918-A-B] 3.3. Para 236 of the Manual shows that a private land on being converted into a private tank would not get full exemption or remission from payment of land assessment, but was extended only a partial remission. In fact, if a tank was constructed on a private land, the land would be continued to be assessed to land revenue with appropriate partial remission. On the other hand, if it is a Government unoccupied land on which a private individual is permitted to construct the tank, it will continue to be shown as Government Kharab land and will not be subjected to any land revenue. In this case neither Survey No.30 nor Survey No.31 is assessed to land revenue and are shown as Government Kharab land in all revenue records (vide Ex. D7, D8, D9, D10, D11 and D12). Unarable lands including tanks are described as Phut Kharab. The Tank register extract (Ex.D15) and other documents produced by respondents show that the tank was breached and BDA had formed a layout in a major portion of the tank land and the remaining area was being developed into a park by the Forest Department. Therefore, Ex. P18 proves that Survey No.30 was not a land owned by a private individual and that it belonged to Government. [Para 8] [918-C-F] 3.4. Ex. P1 which is an extract of Phut Pahani (Inspection Statement showing the old survey numbers and corresponding new numbers of lands and full information regarding tenure and occupancy of the land, described in the Mysore Revenue Manual), did not relate to nor provide proof of ownership of any land. Ex.P1 merely disclosed that when it was inspected on 18.6.1871, survey no.25 of Jakkasandra measuring 10 acres 28 guntas was a tank and that it was repaired by predecessor of appellant. This document therefore does not help the appellants to prove title of their predecessor to the tank. Unless the title to the land on which the tank is situated is established, the mere fact that the tank was shown to have been maintained or repaired by any private individual will not make him the owner of the tank. At best it will show that the tank was maintained by him as a private tank for the purpose of irrigation. [Para 10] [919-D-F] 3.5. Ex.P2 (settlement deed) does not refer to the tank. It does not give the total extent of the land. It does not disclose whether Survey. Nos. 30 and 31 formed part of Dalavai Dinne owned by the ancestors of appellants at any point of time. The settlement deed merely shows that the predecessor of the appellants had settled certain land, known as Dalavai Dinne which was assessed to land revenue, to his son and does not help the appellant to establish title to either survey Nos. 30 or 31. While the settlement deed describes the land settled as land assessed to land revenue, significantly, Survey Nos. 30 or 31 which are now claimed by the appellants as part of Dalavai Dinne were never assessed to land revenue, but were always described as Government Kharab land. Ex.P1 and P2 are therefore of no assistance to the appellants. [Para 11] [919-G-H; 920-A-C] 3.6. Ex.P.10 and P11 are contract notes executed by contractors said to have been engaged by the predecessor of the appellants for execution of certain works relating to the tank at Dalavai Palya. They are not signed by the predecessor of the appellants. Even assuming that the documents (Ex.P10 and P11) are genuine and related to a tank situated in Survey No.30, they would not help the appellants to establish title to Survey No. 30, or Survey. No. 31. [Para 12] [920-E-F] 3.7. Ex.P12 is said to be the Tank Majkur Register Extract maintained by the Assistant Superintendent of Land Records, Bangalore Sub-Division, showing that Re-survey No.30 measured 11 acres 21 guntas and the entire extent was karab (tank) and it corresponded to old survey No.25. It also records that the tank was dug by and was later repaired by predecesors of the appellants about 25 years ago and thereafter no one has repaired it and it is in the state of good repair. The date of inspection or entry is not mentioned and it does in no way help the appellants to prove title to the land. [Para 13] [920-H; 921-A-B] 3.8. The land acquisition reference proceedings relied upon by the appellant did not relate to Survey Nos. 30 or 31. It is related to other lands and the issue before the court was a dispute between the appellant and some other claimants. There is no adjudication of the title of the appellants or their ancestors in regard to Survey Nos. 30 or 31. Nor is there any finding by the court which can support the appellants’ claim to Survey No.30 or Survey No. 31. Therefore, the High Court has rightly rejected the said judgment as not relevant for examining the title of the appellants. [Para 14] [921-C-E] 3.9. The first appellant had earlier filed a suit for a permanent injunction, claiming that he was in possession of Survey. No. 30 (tank). That suit and appeal therefrom were dismissed by recording a finding that he failed to establish possession. The observation of the High Court while dismissing the appeal from the decision in the earlier injunction suit, that the dismissal will not come in the way of plaintiff establishing title in the subsequent suit for declaration of title, will not dilute the finding recorded by the trial court and High Court that the first appellant was not in possession, which has attained finality. [Para 20] [925-F-H; 926-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1588-1589 of 2008. From the Judgment & Order dated 4.9.2007 of the High Court of Karnataka at Bangalore in R.F.A. No. 448 & 529 of 1996. Raju Ramachandran, Sanjay R. Hegde, Joseph Pookkatt, Bhardwaj, S. Iyengar, S.N. Bhat for the Appellants. S.S. Javeli, Basava Prabhu Patil, S.K. Kulkarni, M. Gireesh Kumar, A.S. Kulkarni, Vijay Kumar, Anitha Shenoy, Rashmi Nanda Kumar for the Respondents.
R. HANUMAIAH & ANR. v. SECRETARY TO GOVERNMENT OF KARNATAKA REVENUE DEPARTMENT & ORS. (Civil Appeal Nos. 1588-1589 of 2008) FEBRUARY 24, 2010* [R.V. Raveendran and Swatanter Kumar, JJ.] 2010 (4) SCR 904 The Order of the Court was delivered by ORDER R.V. RAVEENDRAN J. 1. These appeals by special leave are by the plaintiffs … Continue reading
Education/Educational Institutions: Minority institutions – School run by a linguistic minority – Receiving grant-in-aid – Circular issued by Education Department of Delhi Government in September 1989 to all the schools that appointment of scheduled castes and schedule Tribes candidates was a precondition for all the institution receiving grant-in-aid from Government in terms of r.64 of the Delhi School Education Rules, 1973 – HELD: Rule 64(1)(b) and the Circular of September 1989 are not enforceable against linguistic minority schools in NCT of Delhi – Delhi School Education Rules, 1973 – r.64(1)(b) – Delhi School Education Act, 1973 – ss. 20,21, 28(2). Delhi School Education Rules, 1973: r.64(1)(b) – Undertaking to be given by a school for grant-in-aid to fill in the posts in the school with the Scheduled Castes and Scheduled Tribes candidates – HELD: Is not enforceable against linguistic minority schools in NCT of Delhi – The object and purpose of the DSE Act is to improve the standard and management of school education and protection to minority schools – Rules must fall within the ambit and scope of principal legislation – If r.64(1)(b) is enforced against minority schools, it would adversely affect and dilute the protection available to minority school under the Act and the Constitution – Delhi School Education Act, 1973 – s.21- Constitution of India, 1950 – Articles 14,15, 16(2), 29 and 30(2) – Interpretation of Statutes – Purposive interpretation – Doctrine of purposive advancement. Delhi School Education Act, 1973: s.2(o) – `Minority school’ – School run by Sindhi Education Society – HELD: Is a linguistic minority school in NCT of Delhi – Delhi School Education Rules, 1973 – r.64(1)(b). Constitution of India, 1950 Articles 14,15, 29 and 30(2) – Minority Institutions – Grant-in-aid – School run by Sindhi Education Society – HELD: The Society enjoys the status of a linguistic minority and the school being a minority institution is entitled to all constitutional benefits and protection under Articles 29 and 30 – To receive grant-in-aid is a legitimate right of a school subject to satisfying the requirement of law – Article 30(2) requires the State not to discriminate the minority institution in relation to matters of grant-in-aid – Delhi School Education Rules, 1973 – r.64(1)(b). Articles 15, 29 and 30 – Linguistic minority – Right to establish and administer school – HELD: Includes right to appoint teachers – To appoint a teacher is part of the regular administration and management of the school – A linguistic minority is entitled to conserve its language and culture by a constitutional mandate – A provision of law or a circular which would be enforced against the general class may not be enforceable with the same rigors against minority institutions, particularly, where it relates to establishment and management of a school – Rule 64(1)(b) of DSE Rules, if enforced, would adversely affect and dilute the right and protection available to minority school under the Constitution – Delhi School Education Rules, 1973 – r.64(1)(b). Articles 14, 15(5), 16, 29 and 30(1) – Reservation policy – Exception in regard to minority institutions – HELD: Although State is entitled to make law and reservations in different fields for Scheduled Castes, Scheduled Tribes and backward classes in the service under the State, but Article 15(5) carves out an exception for minority educational institutions in regard to which the said power cannot be exercised. Articles 12,14 and 16 – “State” – Reservation in relation to `service under the State’ – Linguistic minority school run by a society registered under Societies Registration Act – Receiving grant-in-aid – HELD: The expression `service under the State’ would include service directly under the State or its instrumentalities which can be termed as State within the meaning of Article 12 – In order to bring a society, organization or body within the expressions `State’ or `other authorities’ appearing in Article 12, financial control, managerial and administrative control and functional control of such institution must be exercised by the State – Merely receiving grant-in-aid per se would not make a minority school or institution `State’ within the meaning of Article 12 – Delhi School Education Rules, 1973 – r.64(1)(b). Administrative Law: Framing of policy – HELD: Is the domain of the Government – It must do so within the framework of the Constitution and the laws – Concept of, reservation has been provided primarily under Article 16 of the Constitution – Minority institutions have been excluded under Article 15(5) from application of reservation policy – State may not be well within its constitutional duty to compel linguistic minority institutions to accept a policy decision, enforcement of which will impinge upon their fundamental right and/or protection – Constitution of India, 1950 – Articles 15(5) and 16 – Delhi School Education Rules, 1973 – r. 64(1)(b). Policy decision – Change of – Reasons for – HELD: When Government changes its policy decision, it is expected to give valid reasons – Absence of reasons and apparent non-application of mind would give colour of arbitrariness to State action – Besides, State would not compel a linguistic minority institution to accept a policy decision, enforcement of which will infringe its fundamental rights and/or protection. Judgment – Reasoning – HELD: Reasoning is considered as the soul of the judgment – Various principles involved in the case need to be analised – Educational Institutions. A Senior Secondary School, run by the appellant-Sindhi Education Society and availing the grant-in-aid, received a communication in September 1989, addressed to all the Schools by the Education Directorate that appointment of Scheduled Castes and Scheduled Tribes candidates was a pre-condition for all the agencies receiving grant-in-aid from the Government in terms of Rule 64 of the Delhi School Education Rules, 1973. The appellant-Society filed a writ petition before the High Court contending that the school being a minority institution was outside the purview of the said communication. The single Judge of the High Court allowed the writ petition holding that the case was entirely covered by the decision in Sumanjit Kaur’s case1 rendered by the single Judge, and affirmed by the Division Bench of the High Court. However, the Division Bench set aside the judgment of the single Judge, and expressing a dissent to the earlier Division Bench decision in Sumanjit Kaur’s case, granted the certificate of leave to appeal. =Allowing the appeal of the Society, the Court HELD:1.1. There is no dispute to the fact that the appellant-Society enjoys the status of a linguistic minority and the institution being a minority institution is entitled to all the constitutional benefits and protection under Articles 29 and 30 of the Constitution of India. The High Court in Sindhi Education Society & Anr. Vs. The Chief Secretary, Govt. of NCT of Delhi & Ors. (Writ petition No. 940 of 1975) has clearly declared that the appellant is a linguistic minority and that judgment has attained finality. Once an institution satisfies the ingredients of s.2(o) of the Delhi School Education Act, 1973, it has to be given the status of a minority institution. [para 14] [105-g-h; 106-A] 1.2. It is of great significance to notice that the legislature in its wisdom by a specific provision u/s 21 of the DSE Act has kept minority schools outside the ambit and scope of s.20, i.e. the power of control and management vested in the authority. Even any of alleged breach of conditions would not enable the authorities to take over the management of any minority school. Section 21, thus, is an absolute exception to the applicability of s.20. The scheme of the DSE Act, in particular, is to give greater freedom to the aided minority institutions and not to impinge upon their minority status as granted under Article 30(1) of the Constitution. [para 16 and 25] [107-F-H; 113-D] Re.: Kerala Education Bill, 1957 (1959) SCR 995; T.M.A. Pai Foundation v. State of Karnataka 2002 Suppl. 3SCR587=(2002) 8 SCC 481; Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha Parishad 2006 Suppl. 4 SCR813 = (2006) 11 SCC 92; Secy. Malankara Syrian Catholic College v. T. Jose 2006 Suppl. 9SCR644 = (2007) 1 SCC 386; Brahmo Samaj Education Society v. State of W.B. 2004 Suppl. 2SCR214 = (2004) 6 SCC 224; Ahmedabad St. Xaviers College Society v. State of Gujarat 1975 (1) SCR173= AIR 1974 SC 1389; Father Thomas Shingare v. State of Maharashtra 2001 Suppl. 5 SCR636= (2002) 1 SCC 758; T. Devadasan v. Union of India (1964) SCR680= AIR 1964 SC 179; and Lt. Governor of Delhi v. V.K. Sodhi & Ors. 2007 (8) SCR1027= AIR 2007 SC 2885, referred to. 1.3. The DSE Rules specifically contemplate that the State Government will not have any strict control over the management of the minority institutions. Even the members, who are nominated by the Director of Education, would only have a right of limited participation with no right of voting. The limited extent of control exercisable by the authorities is demonstrated in DSE Rules 44, 59 and 96(3A) and (3B). Besides these statutory provisions and the scheme under the DSE Act, various judgments of this Court have also consistently taken the view that the State has no right of interference in the establishment, administration and management of a school run by linguistic minority except the power to regulate as specified. [para 53] [158-A-F] 1.4. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. The right to administer does not amount to the right to mal-administer and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly, efficient and sound administration, and can be laid down by the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent mal-administration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books etc. However, the power to regulate, undisputedly, is not unlimited. It has more restriction than freedom particularly, in relation to the management of linguistic minority institutions. [para 55,56 and 58] [159-E-F; 160-C-F; 163-G-H; 164-A] State of Kerala v. Very Rev. Mother Provincial 1971 (1) SCR734= (1970) 2 SCC 417; All Saints High School v. Govt. of A.P. 1971 (1) SCR734= (1980) 2 SCC 478; T.M.A. Pai Foundation v. State of Karnataka 2002 Suppl. 3SCR 587= (2002) 8 SCC 481; and Malankara Syrian Catholic College v. T. Jose 2006 Suppl. 9SCR644 = (2007) 1 SCC 386, referred to. 1.5. Minority institutions could even impart education in their own language or in any other language, which choice essentially has to be left to the minority institution. The constitution itself uses the word `choice’ in Article 30(1), which indicates the extent of liberty and freedom, the framers of the Constitution intended to grant to the minority community. Thus, there arises no occasion for the Court to read restrictions into the freedom of the minority schools on the ground of policy. It may amount to intrusion into the very minority character and protection available to the community in law. [para 56] [161-F-H; 162-A] 1.6. The right to establish and administer includes a right to appoint teachers. A linguistic minority has constitution and character of its own and is entitled to conserve its language and culture by a constitutional mandate. Thus, it must select people who satisfy the prescribed criteria, qualification and eligibility and at the same time ensure better cultural and linguistic compatibility to the minority institution. Of course, what should be the qualification or eligibility criteria for a teacher to be appointed can be defined and, in fact, has been defined by the Government of N.C.T. of Delhi and within that specified parameters, the right of the linguistic minority institution to appoint a teacher cannot be interfered with. The paramount feature of the DSE Act was to bring efficiency and excellence in the field of school education and, therefore, it is expected of the minority institutions to select the best teacher to the faculty. Once the teachers possessing the requisite qualifications were selected by the minorities for their educational institutions, the State would have no right to veto the selection of the teachers. To provide and enforce any regulation, which will practically defeat this purpose would have to be avoided. Besides, a provision of law or a Circular, which would be enforced against the general class, may not be enforceable with the same rigors against the minority institution, particularly where it relates to establishment and management of the school. [para 54, 59 and 63] [158-G; 164-C-G; 168-G-H] 2.1. Under s. 28(2) of the DSE Act, 1973, rules can be framed in regard to the condition which every existing school shall be required to comply. It has to be noticed that such Rules can be framed and have only one purpose `make rules to carry out the provisions of the Act”. The framing of Rules does not empower the Administrator to go beyond the purpose or object of the Act and all the Rules so framed should be intended only to further the cause of the Act and bring nothing into existence, which is specifically or by necessary implication impermissible under the provisions of the Act, Even, otherwise, it is a settled principle of law that Rules must fall within the ambit and scope of the principal legislation. Section 21 is sufficiently indicative of the inbuilt restrictions that the framers of the law intended to impose upon the State while exercising its power in relation to a linguistic minority school. DSE Act was enacted primarily for the purpose of better organization and development of school education in the Union Territory of Delhi and for matters connected therewith or incidental thereto. Thus, the very object and propose of this enactment was to improve the standard as well as management of school education. It will be too far fetched to read into this object that the law was intended to make inroads into character and privileges of the minority. [para 17 and 58] [108-B-F; 164-B; 163-D-F] Islamic Academy of Eduation v. State of Karnataka 2003 (2) Suppl. SCR474 = (2003) 6 SCC 697; P.A. Inamdar v. State of Maharashtra 2005 (2)Suppl. SCR603 = (2005) 6 SCC 537, referred to. 2.2. In the case of Kanya Junior High School, Bal Vidya Mandir the Court has kept a clear line of distinction between laws made by the State to regulate the administration of educational institutions receiving grant-in- aid but if such regulations interfere with overall administrative control by the management over the staff or abridges or dilutes, in any other manner, the right to establish and administer educational institutions, in that event, to such extent, the regulations will be inapplicable to the minorities. [para 43] [144-H; 147-E-F] Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha Parishad 2006 Suppl. 4 SCR813 = (2006) 11 SCC 92, relied on. 2.3. Under Rule 60, every aided school, which was receiving aid, will continue to receive such aid, so long as it fulfills the conditions of receiving the aid, in terms of Rule 64. Rule 64 deals with the condition that an undertaking in writing has to be filed by the institution to receive the grant-in-aid allowed by the competent authority under the provisions of the DSE Act. Sub-rule (1)(b) of r.64 deals with the relevant condition that the school shall fill in the posts in the school with the Scheduled Castes and the Scheduled Tribes candidates in accordance with the instructions issued by the Central Government from time to time and also maintain the roster and other connected returns in this behalf. Second proviso to Rule 10 requires that wherever a linguistic minority school decides to impart education in a language other than the language of such linguistic minority, in that event the Administrator shall not be under any obligation to give grant-in-aid to such schools. [para 22 and 49] [111-C-F; 151-F] 2.4. Article 30(2) requires the State not to discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language, while granting aid to the educational institution. The Government does not enjoy identical control over the management of the schools belonging to the minority and/or majority schools. The logical impact of Article 30(2) read with the provisions of the DSE Act and the Rules framed thereunder is that, to receive grant-in-aid is a legitimate right of a school subject to satisfying the requirements of law. [para 47 and 49] [150-C; 152-B] Unni Krishnan, J.P. V. State of A.P. 1993 (1) SCR594 = (1993) 1 SCC 645, referred to. 2.5. The purpose of granting protection or privilege to the minorities in terms of Article 29, and at the same time, applying negative language in Article 30(2) in relation to State action for releasing grant-in-aid, as well as the provisions of DSE Act, 1973 and the rules framed thereunder is obvious that the constitutional intent is to bring the minorities at parity or equality with the majority as well as give them right to establish, administer and run minority educational institutions. With the primary object of Article 21A of the Constitution in mind, the State was expected to expand its policy as well as methodology for imparting education. [para 58] [163-B-D] 2.6. The concept of equality stated under Article 30(2) has to be read in conjunction with the protection under Article 29 and thus it must then be given effect to achieve excellence in the field of education. Providing of grant-in-aid, which travels from Article 30(2) to the provisions of the DSE Act and Chapter VI of the Rules framed thereunder, is again to be used for the same purpose, subject to regulations which themselves must fall within the permissible legislative competence. The purpose of grant-in-aid cannot be construed so as to destroy, impair or even dilute the very character of the linguistic minority institutions. All these powers must ultimately, stand in comity to the provisions of the Constitution, which is the paramount law. [para 60] [165-D-F] 2.7. Besides, in the given facts and circumstances of the case, the court is also duty bound to advance the cause or the purpose for which the law is enacted. Different laws relating to these fields, thus, must be read harmoniously, construed purposively and implemented to further advancement of the objects, sought to be achieved by such collective implementation of law. While, keeping the rule of purposive interpretation in mind, one has also further to add such substantive or ancillary matters which would advance the purpose of the enactment still further. To sum up, we will term it as `doctrine of purposive advancement’. Courts will have to strike the balance between different facets relating to grant-in-aid, right to education being the fundamental right, protection available to religious or linguistic minorities under the Constitution and the primary object to improve and provide efficiency and excellence in school education. In the considered view of the Court, it will not be permissible to infringe the constitutional protection in exercise of State policy or by a subordinate legislation to frame such rules which will impinge upon the character or in any way substantially dilute the right of the minority to administer and manage affairs of its school. State has the right to frame such regulations which will achieve the object of the Act. Even if it is assumed that there is no complete eclipse of the DSE Act in the Rules in the case of minority institutions, still Rule 64(1)(b), if enforced, would adversely affect and dilute the right and protection available to the minority school under the Constitution. Once the State lacks basic power and jurisdiction to make special provisions for reservations in relation to minority institutions, which do not form part of service under the State, it will be difficult for the Court to hold that Rule 64(1)(b) can be enforced against aided minority institution. [para 54,58 and 60] [159-B; 163-F-G; 165-F-H; 166-C] 3.1. Article 14 of the Constitution commands equality before law or the equal protection of laws. Although, the State is entitled to make law and reservations in different fields for Scheduled Castes and Scheduled Tribes and the persons belonging to backward class in the services under the State, in accordance with law, but the Constitution has itself made out certain exceptions to the general rule of equality in terms of Articles 15 and 16. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This Article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the Article. But, the framers of the Constitution have specifically excluded minority educational institutions from operation of this clause. [para 45-46 and 50] [148-C; 152-C-D] 3.2. Article 16 which ensures equality of opportunity in matters of public employment prohibits discrimination and, at the same time, vests the State with power to make provisions, laws and reservations in relation to a particular class or classes of persons. This power of the State is in relation to the `service under the State’, which expression would obviously include service directly under the State Government or its instrumentalities and/or even the sectors which can be termed as State within the meaning of Article 12 of the Constitution. Once an organization or society falls outside the ambit of this circumference, it will be difficult for the Courts to hold that the State has a right to frame such laws or provisions or make reservations in the field of employment of that organization/society. [para 50] [152-E-H; 153-A-B] 3.3. Merely receiving grant-in-aid per se would not make a minority school or institution `State’ within the meaning of Article 12 of the Constitution. In order to bring a society, organization or body within the expression `State’ or `other authority’ appearing in Article 12, financial control, managerial and administrative control and functional control of such institution must be exercised by the State. The service in an aided linguistic minority school cannot be construed as `a service under the State’ even with the aid of Article 12 of the Constitution. Resultantly, Rule 64(1)(b) cannot be enforced against the linguistic minority school. Rule 64(1)(b) and the circular of September, 1989, are not enforceable against the linguistic minority school in the NCT of Delhi. [para 51,52,67 and 68] [154-A; 153-D; 172-E-H] Ajay Hasia v. Khalid Mujib Sehravardi 1981 (2) SCR79= (1981) 1 SCC 722; Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies (Urban) 2005 (3) SCR592 = (2005) 5 SCC 632; State of U.P. v. Radhey Shyam Rai 2009 (4) SCR143 = (2009) 5 SCC 577, referred to. 4.1. To frame policy is the domain of the Government. If, as a matter of policy, the Government has decided to implement the reservation policy for upliftment of the socially or otherwise backward classes, then essentially it must do so within the frame work of the Constitution and the laws. The concept of reservation has been provided, primarily, under Article 16 of the Constitution. Therefore, it would be the requirement of law that such policies are framed and enforced within the four corners of law and to achieve the laudable cause of upliftment of a particular section of the society. The framework of reservation policy should be such, as to fit in within the constitutional scheme of our democracy. As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section thereof. [para 65-66] [170-E-F; 171-F] M. Nagaraj v. Union of India 2006 (7 ) Suppl. SCR336 = (2006) 8 SCC 212, referred to. 4.2. In its wisdom and apparently in accordance with law Government had taken a policy decision and issued the circular dated 21st March, 1986 exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of the High Court there was a change of mind by the State that resulted in issuance of the subsequent circular of September, 1989. No reasons have been recorded in support of the decision superseding the circular dated 21st March, 1986. It is a settled canon of administrative jurisprudence that State action, must be supported by some valid reasons and should be upon due application of mind. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action. [para 66] [171-F-H; 172- A-B] 4.3. Besides, State actions should be actio quaelibet et sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. [para 67] [172-C-F] 5.1 This Court does not approve the view expressed by the single Judge of the Delhi High Court in the case of Sumanjit Kaur insofar as it held that the regulation would compel appointments to the teaching faculty in the minority schools of the persons, who may be inimical towards the minority community. The Court is of the considered view that the Single Judge as well as the Division Bench erred in law in stating this proposition as it is contra-legam. While deciding a constitutional matter in accordance with law, the Court would not be competent to raise a presumption of inimical attitude of and towards one community or the other. However, to the extent that it may interfere with the choice of medium of instructions as well as minority character of the institution to some extent is a finding recorded in accordance with law. The Division Bench of the High Court, in the instant matter, was right in not accepting the said reason given in Sumarjit Kaur’s case. But, it was expected of the Division Bench to critically analyze other reasons given by the Single Judge in that case. [para 61-62] [167-B-H; 168-A-F] Sumanjit Kaur v. NCT of Delhi 2005 III AD (Delhi) 560 – Disapproved to the extent it observed that regulation would compel appointments to teaching faculty of persons who may be inimical towards minority community. 5.2 Reasoning is considered as the soul of the judgment. The discussion in the impugned judgment does not analyze the various principles enunciated in regard to the protection available to the linguistic minorities under Article 29 and the result of principle of equality introduced by Article 30(2) of the Constitution. Therefore, the view of the Division Bench in the judgment under appeal cannot be accepted. [para 62] [168-D-F] Case Law Reference: 2005 III AD (Delhi) 560 Disapproved para 1 (1959) SCR 995 referred to para 12 2002 Suppl. 3SCR587 referred to para 27 2006 Suppl. 4 SCR813 relied on para 27 2006 Suppl. 9SCR644 referred to para 27 2004 Suppl. 2SCR214 referred to para 27 1975 (1) SCR173 referred to para 28 2001 Suppl. 5 SCR636 referred to para 28 1964 SCR680 referred to para 28 2007 (8) SCR1027 referred to para 28 2003 (2) Suppl. SCR474 referred to para 41 2005 (2) Suppl. SCR603 referred to para 42 1993 (1) SCR594 referred to para 48 1981 (2)SCR79 referred to para 51 2005 (3)SCR592 referred to para 51 2009 (4) SCR143 referred to para 51 1971 (1)SCR 734 referred to para 56 1971 (1) SCR734 referred to para 56 2006 (7) Suppl. SCR336 referred to para 65 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5489 of 2007. From the Judgment & Order dated 30.11.2006 of the High Court of Delhi at New Delhi in LPA Nos. 33, 34, 35, 36, 40, 41, 42 & 43 of 2006. P.P. Malhotra, ASG, Madhurima Mridul, Rekha Pandey, Chetan Chawla (for Anil Katiyar), D.S. Mahra, Ashok Gurnani (for K.L. Janjani), H.K. Puri for the appearing parties.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.5489 OF 2007 Sindhi Education Society & Anr. …Appellants Versus The Chief Secretary, Govt. of NCT of Delhi & Ors. …Respondents JUDGMENT Swatanter Kumar, J. 1. The Bench hearing the letters patent appeal in the High Court of Delhi at New Delhi, while … Continue reading
Education/Educational Institutions: Minority institutions – School run by a linguistic minority – Receiving grant-in-aid – Circular issued by Education Department of Delhi Government in September 1989 to all the schools that appointment of scheduled castes and schedule Tribes candidates was a precondition for all the institution receiving grant-in-aid from Government in terms of r.64 of the Delhi School Education Rules, 1973 – HELD: Rule 64(1)(b) and the Circular of September 1989 are not enforceable against linguistic minority schools in NCT of Delhi – Delhi School Education Rules, 1973 – r.64(1)(b) – Delhi School Education Act, 1973 – ss. 20,21, 28(2). Delhi School Education Rules, 1973: r.64(1)(b) – Undertaking to be given by a school for grant-in-aid to fill in the posts in the school with the Scheduled Castes and Scheduled Tribes candidates – HELD: Is not enforceable against linguistic minority schools in NCT of Delhi – The object and purpose of the DSE Act is to improve the standard and management of school education and protection to minority schools – Rules must fall within the ambit and scope of principal legislation – If r.64(1)(b) is enforced against minority schools, it would adversely affect and dilute the protection available to minority school under the Act and the Constitution – Delhi School Education Act, 1973 – s.21- Constitution of India, 1950 – Articles 14,15, 16(2), 29 and 30(2) – Interpretation of Statutes – Purposive interpretation – Doctrine of purposive advancement. Delhi School Education Act, 1973: s.2(o) – `Minority school’ – School run by Sindhi Education Society – HELD: Is a linguistic minority school in NCT of Delhi – Delhi School Education Rules, 1973 – r.64(1)(b). Constitution of India, 1950 Articles 14,15, 29 and 30(2) – Minority Institutions – Grant-in-aid – School run by Sindhi Education Society – HELD: The Society enjoys the status of a linguistic minority and the school being a minority institution is entitled to all constitutional benefits and protection under Articles 29 and 30 – To receive grant-in-aid is a legitimate right of a school subject to satisfying the requirement of law – Article 30(2) requires the State not to discriminate the minority institution in relation to matters of grant-in-aid – Delhi School Education Rules, 1973 – r.64(1)(b). Articles 15, 29 and 30 – Linguistic minority – Right to establish and administer school – HELD: Includes right to appoint teachers – To appoint a teacher is part of the regular administration and management of the school – A linguistic minority is entitled to conserve its language and culture by a constitutional mandate – A provision of law or a circular which would be enforced against the general class may not be enforceable with the same rigors against minority institutions, particularly, where it relates to establishment and management of a school – Rule 64(1)(b) of DSE Rules, if enforced, would adversely affect and dilute the right and protection available to minority school under the Constitution – Delhi School Education Rules, 1973 – r.64(1)(b). Articles 14, 15(5), 16, 29 and 30(1) – Reservation policy – Exception in regard to minority institutions – HELD: Although State is entitled to make law and reservations in different fields for Scheduled Castes, Scheduled Tribes and backward classes in the service under the State, but Article 15(5) carves out an exception for minority educational institutions in regard to which the said power cannot be exercised. Articles 12,14 and 16 – “State” – Reservation in relation to `service under the State’ – Linguistic minority school run by a society registered under Societies Registration Act – Receiving grant-in-aid – HELD: The expression `service under the State’ would include service directly under the State or its instrumentalities which can be termed as State within the meaning of Article 12 – In order to bring a society, organization or body within the expressions `State’ or `other authorities’ appearing in Article 12, financial control, managerial and administrative control and functional control of such institution must be exercised by the State – Merely receiving grant-in-aid per se would not make a minority school or institution `State’ within the meaning of Article 12 – Delhi School Education Rules, 1973 – r.64(1)(b). Administrative Law: Framing of policy – HELD: Is the domain of the Government – It must do so within the framework of the Constitution and the laws – Concept of, reservation has been provided primarily under Article 16 of the Constitution – Minority institutions have been excluded under Article 15(5) from application of reservation policy – State may not be well within its constitutional duty to compel linguistic minority institutions to accept a policy decision, enforcement of which will impinge upon their fundamental right and/or protection – Constitution of India, 1950 – Articles 15(5) and 16 – Delhi School Education Rules, 1973 – r. 64(1)(b). Policy decision – Change of – Reasons for – HELD: When Government changes its policy decision, it is expected to give valid reasons – Absence of reasons and apparent non-application of mind would give colour of arbitrariness to State action – Besides, State would not compel a linguistic minority institution to accept a policy decision, enforcement of which will infringe its fundamental rights and/or protection. Judgment – Reasoning – HELD: Reasoning is considered as the soul of the judgment – Various principles involved in the case need to be analised – Educational Institutions. A Senior Secondary School, run by the appellant-Sindhi Education Society and availing the grant-in-aid, received a communication in September 1989, addressed to all the Schools by the Education Directorate that appointment of Scheduled Castes and Scheduled Tribes candidates was a pre-condition for all the agencies receiving grant-in-aid from the Government in terms of Rule 64 of the Delhi School Education Rules, 1973. The appellant-Society filed a writ petition before the High Court contending that the school being a minority institution was outside the purview of the said communication. The single Judge of the High Court allowed the writ petition holding that the case was entirely covered by the decision in Sumanjit Kaur’s case1 rendered by the single Judge, and affirmed by the Division Bench of the High Court. However, the Division Bench set aside the judgment of the single Judge, and expressing a dissent to the earlier Division Bench decision in Sumanjit Kaur’s case, granted the certificate of leave to appeal. =Allowing the appeal of the Society, the Court HELD:1.1. There is no dispute to the fact that the appellant-Society enjoys the status of a linguistic minority and the institution being a minority institution is entitled to all the constitutional benefits and protection under Articles 29 and 30 of the Constitution of India. The High Court in Sindhi Education Society & Anr. Vs. The Chief Secretary, Govt. of NCT of Delhi & Ors. (Writ petition No. 940 of 1975) has clearly declared that the appellant is a linguistic minority and that judgment has attained finality. Once an institution satisfies the ingredients of s.2(o) of the Delhi School Education Act, 1973, it has to be given the status of a minority institution. [para 14] [105-g-h; 106-A] 1.2. It is of great significance to notice that the legislature in its wisdom by a specific provision u/s 21 of the DSE Act has kept minority schools outside the ambit and scope of s.20, i.e. the power of control and management vested in the authority. Even any of alleged breach of conditions would not enable the authorities to take over the management of any minority school. Section 21, thus, is an absolute exception to the applicability of s.20. The scheme of the DSE Act, in particular, is to give greater freedom to the aided minority institutions and not to impinge upon their minority status as granted under Article 30(1) of the Constitution. [para 16 and 25] [107-F-H; 113-D] Re.: Kerala Education Bill, 1957 (1959) SCR 995; T.M.A. Pai Foundation v. State of Karnataka 2002 Suppl. 3SCR587=(2002) 8 SCC 481; Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha Parishad 2006 Suppl. 4 SCR813 = (2006) 11 SCC 92; Secy. Malankara Syrian Catholic College v. T. Jose 2006 Suppl. 9SCR644 = (2007) 1 SCC 386; Brahmo Samaj Education Society v. State of W.B. 2004 Suppl. 2SCR214 = (2004) 6 SCC 224; Ahmedabad St. Xaviers College Society v. State of Gujarat 1975 (1) SCR173= AIR 1974 SC 1389; Father Thomas Shingare v. State of Maharashtra 2001 Suppl. 5 SCR636= (2002) 1 SCC 758; T. Devadasan v. Union of India (1964) SCR680= AIR 1964 SC 179; and Lt. Governor of Delhi v. V.K. Sodhi & Ors. 2007 (8) SCR1027= AIR 2007 SC 2885, referred to. 1.3. The DSE Rules specifically contemplate that the State Government will not have any strict control over the management of the minority institutions. Even the members, who are nominated by the Director of Education, would only have a right of limited participation with no right of voting. The limited extent of control exercisable by the authorities is demonstrated in DSE Rules 44, 59 and 96(3A) and (3B). Besides these statutory provisions and the scheme under the DSE Act, various judgments of this Court have also consistently taken the view that the State has no right of interference in the establishment, administration and management of a school run by linguistic minority except the power to regulate as specified. [para 53] [158-A-F] 1.4. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. The right to administer does not amount to the right to mal-administer and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly, efficient and sound administration, and can be laid down by the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent mal-administration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books etc. However, the power to regulate, undisputedly, is not unlimited. It has more restriction than freedom particularly, in relation to the management of linguistic minority institutions. [para 55,56 and 58] [159-E-F; 160-C-F; 163-G-H; 164-A] State of Kerala v. Very Rev. Mother Provincial 1971 (1) SCR734= (1970) 2 SCC 417; All Saints High School v. Govt. of A.P. 1971 (1) SCR734= (1980) 2 SCC 478; T.M.A. Pai Foundation v. State of Karnataka 2002 Suppl. 3SCR 587= (2002) 8 SCC 481; and Malankara Syrian Catholic College v. T. Jose 2006 Suppl. 9SCR644 = (2007) 1 SCC 386, referred to. 1.5. Minority institutions could even impart education in their own language or in any other language, which choice essentially has to be left to the minority institution. The constitution itself uses the word `choice’ in Article 30(1), which indicates the extent of liberty and freedom, the framers of the Constitution intended to grant to the minority community. Thus, there arises no occasion for the Court to read restrictions into the freedom of the minority schools on the ground of policy. It may amount to intrusion into the very minority character and protection available to the community in law. [para 56] [161-F-H; 162-A] 1.6. The right to establish and administer includes a right to appoint teachers. A linguistic minority has constitution and character of its own and is entitled to conserve its language and culture by a constitutional mandate. Thus, it must select people who satisfy the prescribed criteria, qualification and eligibility and at the same time ensure better cultural and linguistic compatibility to the minority institution. Of course, what should be the qualification or eligibility criteria for a teacher to be appointed can be defined and, in fact, has been defined by the Government of N.C.T. of Delhi and within that specified parameters, the right of the linguistic minority institution to appoint a teacher cannot be interfered with. The paramount feature of the DSE Act was to bring efficiency and excellence in the field of school education and, therefore, it is expected of the minority institutions to select the best teacher to the faculty. Once the teachers possessing the requisite qualifications were selected by the minorities for their educational institutions, the State would have no right to veto the selection of the teachers. To provide and enforce any regulation, which will practically defeat this purpose would have to be avoided. Besides, a provision of law or a Circular, which would be enforced against the general class, may not be enforceable with the same rigors against the minority institution, particularly where it relates to establishment and management of the school. [para 54, 59 and 63] [158-G; 164-C-G; 168-G-H] 2.1. Under s. 28(2) of the DSE Act, 1973, rules can be framed in regard to the condition which every existing school shall be required to comply. It has to be noticed that such Rules can be framed and have only one purpose `make rules to carry out the provisions of the Act”. The framing of Rules does not empower the Administrator to go beyond the purpose or object of the Act and all the Rules so framed should be intended only to further the cause of the Act and bring nothing into existence, which is specifically or by necessary implication impermissible under the provisions of the Act, Even, otherwise, it is a settled principle of law that Rules must fall within the ambit and scope of the principal legislation. Section 21 is sufficiently indicative of the inbuilt restrictions that the framers of the law intended to impose upon the State while exercising its power in relation to a linguistic minority school. DSE Act was enacted primarily for the purpose of better organization and development of school education in the Union Territory of Delhi and for matters connected therewith or incidental thereto. Thus, the very object and propose of this enactment was to improve the standard as well as management of school education. It will be too far fetched to read into this object that the law was intended to make inroads into character and privileges of the minority. [para 17 and 58] [108-B-F; 164-B; 163-D-F] Islamic Academy of Eduation v. State of Karnataka 2003 (2) Suppl. SCR474 = (2003) 6 SCC 697; P.A. Inamdar v. State of Maharashtra 2005 (2)Suppl. SCR603 = (2005) 6 SCC 537, referred to. 2.2. In the case of Kanya Junior High School, Bal Vidya Mandir the Court has kept a clear line of distinction between laws made by the State to regulate the administration of educational institutions receiving grant-in- aid but if such regulations interfere with overall administrative control by the management over the staff or abridges or dilutes, in any other manner, the right to establish and administer educational institutions, in that event, to such extent, the regulations will be inapplicable to the minorities. [para 43] [144-H; 147-E-F] Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha Parishad 2006 Suppl. 4 SCR813 = (2006) 11 SCC 92, relied on. 2.3. Under Rule 60, every aided school, which was receiving aid, will continue to receive such aid, so long as it fulfills the conditions of receiving the aid, in terms of Rule 64. Rule 64 deals with the condition that an undertaking in writing has to be filed by the institution to receive the grant-in-aid allowed by the competent authority under the provisions of the DSE Act. Sub-rule (1)(b) of r.64 deals with the relevant condition that the school shall fill in the posts in the school with the Scheduled Castes and the Scheduled Tribes candidates in accordance with the instructions issued by the Central Government from time to time and also maintain the roster and other connected returns in this behalf. Second proviso to Rule 10 requires that wherever a linguistic minority school decides to impart education in a language other than the language of such linguistic minority, in that event the Administrator shall not be under any obligation to give grant-in-aid to such schools. [para 22 and 49] [111-C-F; 151-F] 2.4. Article 30(2) requires the State not to discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language, while granting aid to the educational institution. The Government does not enjoy identical control over the management of the schools belonging to the minority and/or majority schools. The logical impact of Article 30(2) read with the provisions of the DSE Act and the Rules framed thereunder is that, to receive grant-in-aid is a legitimate right of a school subject to satisfying the requirements of law. [para 47 and 49] [150-C; 152-B] Unni Krishnan, J.P. V. State of A.P. 1993 (1) SCR594 = (1993) 1 SCC 645, referred to. 2.5. The purpose of granting protection or privilege to the minorities in terms of Article 29, and at the same time, applying negative language in Article 30(2) in relation to State action for releasing grant-in-aid, as well as the provisions of DSE Act, 1973 and the rules framed thereunder is obvious that the constitutional intent is to bring the minorities at parity or equality with the majority as well as give them right to establish, administer and run minority educational institutions. With the primary object of Article 21A of the Constitution in mind, the State was expected to expand its policy as well as methodology for imparting education. [para 58] [163-B-D] 2.6. The concept of equality stated under Article 30(2) has to be read in conjunction with the protection under Article 29 and thus it must then be given effect to achieve excellence in the field of education. Providing of grant-in-aid, which travels from Article 30(2) to the provisions of the DSE Act and Chapter VI of the Rules framed thereunder, is again to be used for the same purpose, subject to regulations which themselves must fall within the permissible legislative competence. The purpose of grant-in-aid cannot be construed so as to destroy, impair or even dilute the very character of the linguistic minority institutions. All these powers must ultimately, stand in comity to the provisions of the Constitution, which is the paramount law. [para 60] [165-D-F] 2.7. Besides, in the given facts and circumstances of the case, the court is also duty bound to advance the cause or the purpose for which the law is enacted. Different laws relating to these fields, thus, must be read harmoniously, construed purposively and implemented to further advancement of the objects, sought to be achieved by such collective implementation of law. While, keeping the rule of purposive interpretation in mind, one has also further to add such substantive or ancillary matters which would advance the purpose of the enactment still further. To sum up, we will term it as `doctrine of purposive advancement’. Courts will have to strike the balance between different facets relating to grant-in-aid, right to education being the fundamental right, protection available to religious or linguistic minorities under the Constitution and the primary object to improve and provide efficiency and excellence in school education. In the considered view of the Court, it will not be permissible to infringe the constitutional protection in exercise of State policy or by a subordinate legislation to frame such rules which will impinge upon the character or in any way substantially dilute the right of the minority to administer and manage affairs of its school. State has the right to frame such regulations which will achieve the object of the Act. Even if it is assumed that there is no complete eclipse of the DSE Act in the Rules in the case of minority institutions, still Rule 64(1)(b), if enforced, would adversely affect and dilute the right and protection available to the minority school under the Constitution. Once the State lacks basic power and jurisdiction to make special provisions for reservations in relation to minority institutions, which do not form part of service under the State, it will be difficult for the Court to hold that Rule 64(1)(b) can be enforced against aided minority institution. [para 54,58 and 60] [159-B; 163-F-G; 165-F-H; 166-C] 3.1. Article 14 of the Constitution commands equality before law or the equal protection of laws. Although, the State is entitled to make law and reservations in different fields for Scheduled Castes and Scheduled Tribes and the persons belonging to backward class in the services under the State, in accordance with law, but the Constitution has itself made out certain exceptions to the general rule of equality in terms of Articles 15 and 16. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This Article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the Article. But, the framers of the Constitution have specifically excluded minority educational institutions from operation of this clause. [para 45-46 and 50] [148-C; 152-C-D] 3.2. Article 16 which ensures equality of opportunity in matters of public employment prohibits discrimination and, at the same time, vests the State with power to make provisions, laws and reservations in relation to a particular class or classes of persons. This power of the State is in relation to the `service under the State’, which expression would obviously include service directly under the State Government or its instrumentalities and/or even the sectors which can be termed as State within the meaning of Article 12 of the Constitution. Once an organization or society falls outside the ambit of this circumference, it will be difficult for the Courts to hold that the State has a right to frame such laws or provisions or make reservations in the field of employment of that organization/society. [para 50] [152-E-H; 153-A-B] 3.3. Merely receiving grant-in-aid per se would not make a minority school or institution `State’ within the meaning of Article 12 of the Constitution. In order to bring a society, organization or body within the expression `State’ or `other authority’ appearing in Article 12, financial control, managerial and administrative control and functional control of such institution must be exercised by the State. The service in an aided linguistic minority school cannot be construed as `a service under the State’ even with the aid of Article 12 of the Constitution. Resultantly, Rule 64(1)(b) cannot be enforced against the linguistic minority school. Rule 64(1)(b) and the circular of September, 1989, are not enforceable against the linguistic minority school in the NCT of Delhi. [para 51,52,67 and 68] [154-A; 153-D; 172-E-H] Ajay Hasia v. Khalid Mujib Sehravardi 1981 (2) SCR79= (1981) 1 SCC 722; Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies (Urban) 2005 (3) SCR592 = (2005) 5 SCC 632; State of U.P. v. Radhey Shyam Rai 2009 (4) SCR143 = (2009) 5 SCC 577, referred to. 4.1. To frame policy is the domain of the Government. If, as a matter of policy, the Government has decided to implement the reservation policy for upliftment of the socially or otherwise backward classes, then essentially it must do so within the frame work of the Constitution and the laws. The concept of reservation has been provided, primarily, under Article 16 of the Constitution. Therefore, it would be the requirement of law that such policies are framed and enforced within the four corners of law and to achieve the laudable cause of upliftment of a particular section of the society. The framework of reservation policy should be such, as to fit in within the constitutional scheme of our democracy. As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section thereof. [para 65-66] [170-E-F; 171-F] M. Nagaraj v. Union of India 2006 (7 ) Suppl. SCR336 = (2006) 8 SCC 212, referred to. 4.2. In its wisdom and apparently in accordance with law Government had taken a policy decision and issued the circular dated 21st March, 1986 exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of the High Court there was a change of mind by the State that resulted in issuance of the subsequent circular of September, 1989. No reasons have been recorded in support of the decision superseding the circular dated 21st March, 1986. It is a settled canon of administrative jurisprudence that State action, must be supported by some valid reasons and should be upon due application of mind. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action. [para 66] [171-F-H; 172- A-B] 4.3. Besides, State actions should be actio quaelibet et sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. [para 67] [172-C-F] 5.1 This Court does not approve the view expressed by the single Judge of the Delhi High Court in the case of Sumanjit Kaur insofar as it held that the regulation would compel appointments to the teaching faculty in the minority schools of the persons, who may be inimical towards the minority community. The Court is of the considered view that the Single Judge as well as the Division Bench erred in law in stating this proposition as it is contra-legam. While deciding a constitutional matter in accordance with law, the Court would not be competent to raise a presumption of inimical attitude of and towards one community or the other. However, to the extent that it may interfere with the choice of medium of instructions as well as minority character of the institution to some extent is a finding recorded in accordance with law. The Division Bench of the High Court, in the instant matter, was right in not accepting the said reason given in Sumarjit Kaur’s case. But, it was expected of the Division Bench to critically analyze other reasons given by the Single Judge in that case. [para 61-62] [167-B-H; 168-A-F] Sumanjit Kaur v. NCT of Delhi 2005 III AD (Delhi) 560 – Disapproved to the extent it observed that regulation would compel appointments to teaching faculty of persons who may be inimical towards minority community. 5.2 Reasoning is considered as the soul of the judgment. The discussion in the impugned judgment does not analyze the various principles enunciated in regard to the protection available to the linguistic minorities under Article 29 and the result of principle of equality introduced by Article 30(2) of the Constitution. Therefore, the view of the Division Bench in the judgment under appeal cannot be accepted. [para 62] [168-D-F] Case Law Reference: 2005 III AD (Delhi) 560 Disapproved para 1 (1959) SCR 995 referred to para 12 2002 Suppl. 3SCR587 referred to para 27 2006 Suppl. 4 SCR813 relied on para 27 2006 Suppl. 9SCR644 referred to para 27 2004 Suppl. 2SCR214 referred to para 27 1975 (1) SCR173 referred to para 28 2001 Suppl. 5 SCR636 referred to para 28 1964 SCR680 referred to para 28 2007 (8) SCR1027 referred to para 28 2003 (2) Suppl. SCR474 referred to para 41 2005 (2) Suppl. SCR603 referred to para 42 1993 (1) SCR594 referred to para 48 1981 (2)SCR79 referred to para 51 2005 (3)SCR592 referred to para 51 2009 (4) SCR143 referred to para 51 1971 (1)SCR 734 referred to para 56 1971 (1) SCR734 referred to para 56 2006 (7) Suppl. SCR336 referred to para 65 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5489 of 2007. From the Judgment & Order dated 30.11.2006 of the High Court of Delhi at New Delhi in LPA Nos. 33, 34, 35, 36, 40, 41, 42 & 43 of 2006. P.P. Malhotra, ASG, Madhurima Mridul, Rekha Pandey, Chetan Chawla (for Anil Katiyar), D.S. Mahra, Ashok Gurnani (for K.L. Janjani), H.K. Puri for the appearing parties.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.5489 OF 2007 Sindhi Education Society & Anr. …Appellants Versus The Chief Secretary, Govt. of NCT of Delhi & Ors. …Respondents JUDGMENT Swatanter Kumar, J. 1. The Bench hearing the letters patent appeal in the High Court of Delhi at New Delhi, while setting … Continue reading
Specific Relief Act, 1963 – ss.13(1)(c) and 20 – Agreement to sell – Failure to execute sale deed – Suit for specific performance and, in the alternative, for refund of earnest money – Trial court partly decreeing the suit and directing refund of earnest money – First appellate court granting relief of specific performance – High Court affirming the decree passed by first appellate court – Held: Grant of decree of specific performance is lawful and also justified on the facts as well as equity – Even if the property was mortgaged to Co-operative Society, there is no bar to transfer the property in view of s. 48(d) of Co-operative Societies Act and ss. 12(1)(c) and 12(2) of Resettlement Act – Purchaser has the right to compel the seller to redeem the mortgage and obtain a valid discharge and then specifically perform the contract where the property is encumbered for an amount not exceeding purchase money – Increase in the price of suit property cannot be a ground for denying decree of specific performance – Maharashtra Co-operative Societies Act, 1960 – s. 48(d) – Maharashtra Re- settlement of Project Displaced Persons Act, 1976 – ss. 12(1)(c) and 12(2) – Equity. The plaintiff-respondent entered into an agreement with the defendants- appellants whereby the latter agreed to sell the suit land to the former. A sum of Rs. 10,000/- was paid at the time of agreement. As the appellants failed to execute the sale deed in favour of the respondent, the latter filed the suit for specific performance and, in the alternative, for refund of earnest money along with damages. The trial court concluded that there was no intention on the part of the defendants to sell the property and partially decreeing the suit, directed the defendants to pay a sum of Rs. 10,000/- with interest @ 6% p.a. and denied the relief of specific performance of contract. The first appellate court setting aside the decree passed by the trial court, passed the decree for specific performance upon grant of permission by the competent authority as contemplated u/s. 12(c) of Maharashtra Re-settlement of Project Displaced Persons Act, 1976 and also by the Co-operative Society as contemplated u/s. 47(2) of Maharashtra Co-operative Societies Act, 1960. The High Court affirmed the decree passed by the first appellate court. In the instant appeal, the appellant-defendant contended that no decree for specific performance could have been passed because the property could not be transferred in favour of the respondent in view of the restriction u/s. 48 of Co-operative Societies Act and u/ss. 12(1)(c) 12(2) and 12(3) of the Re-settlement Act; that the courts below failed to appreciate the evidence in its correct perspective; and that the value of the suit property had increased tremendously. Respondent-plaintiff volunteered to pay increased amount towards the consideration i.e. Rs. 1,50,000/- instead of Rs. 40,000/- in view of the increased price of the land. =Dismissing the appeal, the Court HELD: 1. All the three courts have returned all the findings of fact in favour of the respondent. Such findings are based upon proper appreciation of evidence and no legal infirmity can be traced in them. It is hardly permissible for Supreme Court to go into such questions of facts alone, in exercise of its jurisdiction under Article 136 of the Constitution of India. [Para 11] [322-a-b] 2.1 It is not correct to say that the land could not have been transferred in favour of the respondent in view of the restriction contained in the provisions u/s. 48 (d) of Maharashtra Co-operative Societies Act, 1960 and u/ss. 12(1) (c), 12(2) and 12(3) of Maharashtra Re-settlement of Project Displaced Persons Act, 1976. The appellants did not adduce any evidence that the property in question had been mortgaged or was under the charge of the Co-operative Society. The appellants did not place any such argument or specific plea. In fact, no such issue was either claimed or framed in this regard. [Paras 10 and 12] [323-C-D] 2.2 Besides, the provisions of clause (d) of Section 48 of Maharashtra Co- operative Societies Act, 1960 places a conditional restriction upon alienation of the whole or any part of the land or interest in the property unless and until the whole amount borrowed by the member of the Society has been repaid with interest. Once the loan of the Society has been cleared, it obviously cannot have any objection to transfer the property. No effort was made by the appellants to bring on record any evidence to show as to what was the extent of money currently due to the Society, if at all, and for what amount the property had been mortgaged in its favour. In the absence of any specific evidence in that regard, the Court will have to draw an adverse inference against the appellants for not producing before the court the best available evidence. In any case, the appellants cannot take advantage of their own wrong. [Para 12] [322-D-G] 2.3 As regards the plea that the land could not be transferred in favour of the respondent in view of the restriction contained in Sections 12(1)(c) and 12(2) of the Maharashtra Re-settlement of Project Displaced Persons Act, 1976, a bare reading of the provisions shows that the Government can grant permission for transfer of the property, subject to such conditions, as it may deem fit and proper. Again, the appellants have neither claimed any issue nor led any evidence to substantiate even this plea. [Paras 12 and 13] [323-G-H; 324-A-B] Nathulal v. Phool Chand AIR 1970 SC 546 – relied on. 3.1 Section 13(1)(c) of the Specific Relief Act, 1963 clearly postulates that where a person contracts to sell an immovable property with an imperfect title and the property is encumbered for an amount not exceeding the purchase money, the purchaser has the right to compel the seller to redeem the mortgage and obtain a valid discharge and then specifically perform the contract in its favour. [Para 13] [323-D-E] 3.2 Section 20 of the Specific Relief Act vests the court with a wide discretion either to decree the suit for specific performance or to decline the same. The discretion of the Court has to be exercised as per the settled judicial principles. In the instant case, it is the appellants who have taken advantage of the pendency of the proceedings. They have used the sum given towards earnest money for all this period as well as have enjoyed the fruits of the property. It is, therefore, not only lawful but even equity and facts of the case demand that a decree for specific performance should be granted in favour of the respondent. Besides, the respondent has agreed to pay much higher consideration than what was payable in terms of the agreement of sale. [Paras 14 and 15] [323-F; 325-B-E] Bal Krishna vs. Bhagwan Das (2008) 12 SCC 145; Mohammadia Cooperative Building Society Ltd. vs. Lakshmi Srinivasa Cooperative Building Society Ltd. and Ors. (2008) 7 SCC 310; P.V. Joseph’s son Mathew vs. N. Kuruvila’s Son AIR 1987 SC 2328 – distinguished. 4. The onus to prove that the respondent had obtained signatures of the appellants on blank papers on the pretext of advancing a loan of Rs.2,000/- was entirely upon the appellants. No evidence, much less cogent documentary or oral evidence, was led by the appellants to discharge this onus. The averment has rightly been disbelieved by the courts concerned. The appellants led no evidence and brought nothing to the notice of this Court, even during the course of the hearing, in support of their case. [Para 16] [325-E-H] 5. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. The appellants have neither filed cross- objections nor any appeal challenging the findings recorded by the trial court. In fact, the entire conduct of the defendant-appellants shows that they have not only failed to prove their claim before the courts of competent jurisdiction but have even not raised proper pleas in their pleadings. [Para 16] [325-G-H; 326-A-B] 6.1 Increase in the price of the land in question cannot be a ground for denying the decree of specific performance to the respondent. The first appellate court, by a well reasoned judgment, has granted the relief of specific performance instead of only granting refund of money, as given by the trial court. The judgment of the first appellate court has been upheld by the High Court and there is no reason whatsoever to interfere with the concurrent findings of facts and law as stated in the judgment under appeal. [Para 17] [326-C-D] 6.2 The respondent has volunteered to pay a sum of Rs.1,50,000/- instead of Rs.40,000/- as the total sale consideration. This offer of the respondent is very fair. Even from the point of view of equity, the offer made by the respondents, substantially balances the equities between the parties. Therefore, no prejudice will be caused to the appellants in any manner whatsoever. [Paras 17 and 18] [326-D-E; 326-F-G] Case Law Reference: AIR 1970 SC 546 Relied on. Para 13 2008 (12) SCC 145 Distinguished. Para 14 2008 (7) SCC 310 Distinguished. Para 14 AIR 1987 SC 2328 Distinguished. Para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6509 of 2005. From the Judgment & Order dated 17.07.2001 of the High Court of Judicature at Bombay bench at Aurangabad in Second Appeal No. 96 of 2001. Miten Mahapatra, Ravindra Keshavrao Adsure for the Appellants. Nitin Kumar Gupta (for Shivaji M. Jadhav) for the Respondent.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6509 OF 2005 Laxman Tatyaba Kankate & Anr. …Appellants Versus Smt. Taramati Harishchandra Dhatrak …Respondent JUDGMENT Swatanter Kumar, J. 1. Civil Judge, Senior Division, Shrirampur, District Ahmednagar (for short `the Trial Court’), in a suit for specific performance and in the alternative for … Continue reading
(1) Whether the provisions of Rules 121 and 122-A of the State Bar Council of Madhya Pradesh Rules (for short, the `M.P. Rules’) are ultra vires Section 15 of the Advocates Act, 1961 (for short, `the Advocates Act’), inter alia for the reason that there is no nexus between the rule making power of the State Bar Councils and the powers provided under Section 15(1) or 15(2)(c) of the Advocates Act? Was the delegation of legislative power under Section 15 of the Advocates Act excessive, inasmuch as it does not provide any guidelines for removal of office-bearers of the State Bar Councils? (2) Whether despite the absence of the enabling provisions in the principal statute, namely, the Advocates Act, empowering subordinate State Bar Councils to enact provisions for removal of the office bearers of the State Bar Councils by `no confidence motions’, such power could be read into the general clause of Section 15(1) of the Advocates Act? (3) Whether Rules 121 and 122-A of the M.P. Rules are invalid for want of prior approval from the Bar Council of India?
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6482 OF 2011 (Arising out of SLP (CIVIL) No. 15722 of 2011) Pratap Chandra Mehta … Appellant Versus State Bar Council of M.P. & Ors. … Respondents With CIVIL APPEAL NO.6483 OF 2011 (Arising out of SLP (CIVIL) No. 16088 of 2011) Rameshwar … Continue reading
advocatemmmohan 