//
archives

writ of mandamus

This tag is associated with 12 posts

KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977: ss. 4 (2) (b) and 10 – Abolition of Inams – Inamdar regranted the land – Erstwhile mortgagee claiming the mortgage to have been revived consequently – Held: High Court was not justified in concluding that s. 43 of Transfer of Property Act is relevant – Neither s. 43 of TP Act nor s. 10 of Karnataka Act has application to the facts of the case -Matter remitted to High Court for consideration afresh – Transfer of Property Act, 1882 – s. 43 – Doctrine of feeding the estoppel. A religious institution, namely, Kannada Mutt, was granted certain Jagir lands. Upon abolition of Inams by virtue of Karnataka Certain Inams Abolition Act, 1977, the lands stood vested with the State Government. However, the appellant being the Matadhisathi of the Mutt was allowed re- grant of the land. The respondents, who were the erstwhile mortgagees, claimed possession of the land in question contending that by virtue of order of re-grant in favour of the appellant, the earlier mortgage was revived and possession of the land could not be granted to the appellant. When the matter reached the Division Bench of the High Court in writ appeals, it held that s. 43 of the Transfer of Property Act, 1882 was applicable. Aggrieved, the Mathadhipati filed the appeals. =Allowing the appeals, the Court HELD: 1.1 A bare reading of s.4 of the Karnataka Certain Inams Abolition Act, 1977 makes it clear that notwithstanding any contract, all Inam tenures stood abolished and the consequences were the passing of the rights, title and interests as provided in s.4(2)(b). Section 10 of the Act has no application to the facts of the case. [para 6-7] [ 442-E, F; 443-B] Syed Bhasheer Ahamed and Ors. V. State of Karnataka ILR 1994 Kar 159 – distinguished. 1.2 The sine quo non for application of s.43 is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certain immovable property or professes to transfer such property for consideration. Only then the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during which the contract of transfer subsists. Therefore, the High Court was not justified in concluding that s.43 is relevant. [para 6] [ 442-G, H; 443-A] 2. Without expressing any opinion about the acceptability of any stand taken by the respondents, the judgment of the High Court is set aside and the matter is remitted to it for consideration afresh. It is made clear that the issue relating to applicability of s.43 stands closed. [para 8] [444-B, C] Case Law Reference ILR 1994 Kar 159 distinguished para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1040-1053 of 2009 From the Judgement and Order dated 12.09.2007 of the Hon’ble High Court of Karnataka at Bangalore in W.A. No. 1936-40 & 1941-45 of 2005 Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana, Chandrashekar, for the Appellant. A.K. Subbaiah, S.J. Amith, Aparna Bhat, Kiran Suri, Sanjay R. Hegde, for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1040-1053 OF 2009 (Arising out of SLP (C) Nos. 3733-3746 of 2008) Ni. Pra Channabasava D.S. Matadhipathigalu ..Appellant Kannada Mutt Versus C.P. Kaveeramma and Ors. ..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in these appeals is to the … Continue reading

Election Symbols (Reservation and Allotment) Order, 1968 – Clauses 10A, 5, 6, 6A, 6B and 6C – De-recognition of Political party as a recognized political party – Challenge to de-recognition set aside right upto Supreme Court – In the meantime, by amendment of Symbols Order, Clause 10A inserted providing for retention of its symbol by a de-reorganiszed political party for six years as a grace period – Provision challenged as irrational, arbitrary and undemocratic – Election Commission as well as High Court setting aside the challenge and upholding Clause 10A – On appeal, held: The provision is not arbitrary, irrational or undemocratic – The grace period of six years for retention of symbol is rational – Reading down the provision by ignoring the limit of six years is not permissible since the language of the provision is clear and since such reading down will lead to absurdity in the wake of Clauses 5 and 6 – In absence of challenge to clauses 5 and 6 also, challenge to Clause 10A fails – The symbol of a political party cannot be treated as `intellectual property’ as it does not have the concept of monetary implications – Representation of People Act, 1951 – s. 29A – Interpretation of Statutes. After de-recognition of `Janata Party’ as a recognized political party, it lost its reserved symbol. Appellant (president of the party) approached the Election Commission asking for continuance of the reservation of its symbol. The order of de-recognition was also challenged before this Court by filing SLP. During the pendency thereof, Election Symbols (Reservation and Allotment) Order, 1968 was amended, whereby clause 10A was inserted which allowed a period of six years as a grace period to retain its symbol, even after the party lost its status as a recognized party. Ultimately the SLP was dismissed in limine. Appellant approached Election Commission complaining against clause 10A and proposed the amendment so as to enable the once recognized political parties of national or State level to retain their reserved symbols permanently. Election commission refused the proposal. Appellant filed a writ petition, challenging Clause 10A as arbitrary. High Court dismissed the writ petition. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. Theory of continuance and permanent reservation of a particular symbol for a particular political party cannot stand on the ground that after passing of the Election Symbols (Reservation and Allotment) Order, 1968, the concept of recognition of a political party and the concept of a reserved symbol for that party must be treated to have amalgamated. [Para 17] [866-E] 2. There is no irrationality or arbitrariness in providing six years time as an additional period for retaining the exclusive symbol for the simple reason that within that period there is bound to be one or more general elections on the national level. So also, if any political party has lost its status in the State Elections, apart from the fact that upto the next general elections, it will not lose the said symbol, there is bound to be another opportunity by way of fresh elections within six years. It is on this rationale that the period of six years is provided. This is apart from the fact that in case of Janata Party it continued to have and enjoyed the status of said national or State party for the purposes of next general elections due to the saving clause vide clause 7. [Para 17] [866 A-C] 3. In absence of any challenge to the constitutional validity of clauses 5 and 6, the challenge to Clause 10A must necessarily fail. Reading these clauses together it becomes very clear that firstly the reserved symbol is meant only for recognized political party for its exclusive user. Again the second inference which comes out of such conjoint reading of two provisions is that if a particular symbol is not a reserved symbol, meaning thereby that it is not meant for a recognized political party, such symbol automatically become a free symbol. There is no challenge to this concept nor is there any challenge to the constitutional validity of Clauses 5 and 6. [Para 18] [867-A-C] 4.1 The exercise of reading down the provisions of Clause 10A so as to avoid the mention of six years in Clause 10A, is not possible where the language of the provision is clear, admits of no doubt and no situation warrants such reading down. Such reading down and thereby ignoring the limit of six years as provided in the Clause would render other provisions nugatory. Since the language of Clause 10A is extremely clear and its plain meaning does not, in any manner, bring out any absurd results, the court would have to rely upon the plain meaning which is the only meaning emerging out of the plain language of the provision. It is for this reason that the court was not in a position to read down the provision so as to ignore the words “six years” in Clause 10A. Apart from that, such reading down would lead to absurdity in the wake of other provisions. [Paras 18 and 20] [866 D-E- 869A-B] 4.2 It is trite law that a statute must be read as a whole in its context. Therefore, the provisions of Clause 10A should be read in the light of other provisions, namely, Clauses 5, 6, 6A, 6B and 6C. If the provision is read down ignoring the limit of six years, an absurdity would creep in vis-

1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._5803________OF 2008 (Arising out of SLP (Civil) No.3010 of 2008) Subramanian Swamy ….Appellant Versus Election Commission of India Through its Secretary ….Respondent JUDGMENT V.S. SIRPURKAR, J. 1. Leave granted. 2. Dr.Subramanian Swamy comes up before us challenging the judgment of the High … Continue reading

Blog Stats

  • 2,886,951 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers
Follow advocatemmmohan on WordPress.com