judgments

Sunday, 11 March 2012

IF THE FUNDAMENTAL RIGHTS OF A CITIZEN ARE INFRINGED THEN THE LIABILITY OF THE STATE, ITS OFFICIALS AND INSTRUMENTALS IS STRICT 2011 SC

Justice R.V. Raveendran, Justice K.S. Radhakrishnan in Municipal Corporation of Delhi VS Association of Victims of Uphaar Tragedy & Ors. Decided on 13 October, 2011 In a case, where life and personal liberty have been violated the absence of any statutory provision for compensation in the Statute is of no consequence. Right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution of India has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high, compared to the statutory powers and supervision expected from officers functioning under the statutes like Companies Act, Cooperative Societies Act and such similar legislations. When we look at the various provisions of the Cinematographic Act, 1952 and the Rules made thereunder, the Delhi Building Regulations and the Electricity Laws the duty of care on officials was high and liabilities strict.

Law is well settled that a Constitutional Court can award monetary compensation against State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations. Quite often the courts have a difficult task in determining damages in various fact situations. The yardsticks normally adopted for determining the compensation payable in a private tort claims are not as such applicable when a constitutional court determines the compensation in cases where there is violation of fundamental rights guaranteed to its citizens.

This Court in Union of India v. Prabhakaran (2008) (9) SCC 527, extended the principle to cover public utilities like the railways, electricity distribution companies, public corporations and local bodies which may be social utility undertakings not working for private profit. In Prabhakaran (supra) a woman fell on a railway track and was fatally run over and her husband demanded compensation. Railways argued that she was negligent as she tried to board a moving train. Rejecting the plea of the Railways, this Court held that her "contributory negligence" should not be considered in such untoward incidents - the railways has "strict liability". A strict liability in torts, private or constitutional do not call for a finding of intent or negligence. In such a case highest degree of care is expected from private and public bodies especially when the conduct causes physical injury or harm to persons. The question as to whether the law imposes a strict liability on the state and its officials primarily depends upon the purpose and object of the legislation as well. When activities are hazardous and if they are inherently dangerous the statute expects highest degree of care and if someone is injured because of such activities, the State and its officials are liable even if they could establish that there was no negligence and that it was not intentional. Public safety legislations generally falls in that category of breach of statutory duty by a public authority. To decide whether the breach is actionable, the Court must generally look at the statute and its provisions and determine whether legislature in its wisdom intended to give rise to a cause of action in damages and whether the claimant is intended to be protected.

Filing petition with fabricated documents is condemned by High court of Karnataka in serious words.

In Cyril D'Souza vs Ponkra Mugera And Others 1998 (1) KarLJ 659, Justice H N Tilhari “This writ petition has got no merits and it, in my opinion should be dismissed with a note of caution to the members of the Bar and the Counsel of the petitioner as well, that in future, the Counsels should be very cautious in drafting, filing the petitions, affidavit etc. and see that the parties do not file writ petitions etc. with purged and forged documents, otherwise, they may have to face the serious consequences. Instead, this petition appears to be an attempt of the petitioner to procure some order from the Court on the basis of an agreement which prima facie appears to be an ante-dated document prepared after that date and it prima facie shows that a false document has been filed with false allegations, because if petitioner would have been in possession, penalty would have been realised from him, the allegations in the petition that the petitioner had been in possession and the date of grant also appears to be false. Filing a false affidavit and filing forged document, as per law laid down by the Supreme Court is nothing but an act illegal, interfering with the proper administration of justice and it prima facie makes out a case for contempt.”

WHEN COURT ITSELF COMMITS DEFAULT -LITIGANT DESERVES TO BE PROTECTED

In Jagat Dhish Bhargava vs Jawahar Lal Bhargava & Others (AIR 1961 SC 832) the Hon’ble Supreme court of India held that "There can be no doubt that the litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in discharge of their duties and it is one of the first and highest duties of all the Courts is to take care that the act of the Court does no injury to any of the suitors."

POLICE CAN BE DIRECTED TO IMPLIMENT CIVIL COURT ORDERS

POLICE CAN BE DIRECTED TO IMPLIMENT CIVIL COURT ORDERS:-

PAPANNA v. NAGACHARI ILR 1996 KAR 127 "When the Court has prima facie considered the matter and has granted a temporary injunction in favour of the plaintiff after hearing the defendant, the Court has to enforce the same and the contention of the defendant that he is in possession, cannot be accepted at this stage. If the Court had no power to implement its own orders, then there is no purpose in the Courts passing orders in matters coming before them. The remedy under Order 39 Rule 2(a) is not exhaustive and Court can pass appropriate orders to see that its orders are enforced. In necessary cases, even the police can be directed to enforce the orders of the Court."

WHEN INTERIM ORDER VIOLATED:-

Meera Chauhan v. Harsh Bishnoi and another 2007 (1) RCR (Civil) 597. , 2006(10 )Suppl.SCR965 , , 2006(13 )SCALE 581 , 2007(1 ) JT458 It is observed that: “At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order. It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the Court can order restoration of possession to the party wronged. Keeping the aforesaid principles in mind for exercising of power under Section 151 of Code of Civil Procedure, we proceed to consider the facts and circumstances of the case and decide whether the High Court as well as the trial court was justified in the facts and circumstances of the case to direct restoration of possession.”

Saturday, 10 March 2012

WHEN JUDGE HIMSELF CORRUPT

In K. VEERASWAMI v. UNION OF INDIA AND OTHERS 1991 SCC (3) 655, by Majority Judgement of full Bench consisting of five Judges Justice K. Jagannath Shetty, Justice M.N. Venkatachalaiah, Justice B.C. Ray, Justice L.M. Sharma held that: The society's demand for honesty in a Judge is exacting and absolute. The standards of judicial behaviour, both on and off the Bench, are normally extremely high. For a judge to deviate from such standards of honesty and impartiality is to betray the trust reposed on him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice the size of the bribe or scope of corruption cannot be the scale for measuring a judge's dishonour. A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system. A judicial scandal has always been regarded as far more deplorable than a scandal involving either the Executive or a member of the Legislature. The slightest hint of irregularity or impropriety in the Court is a cause for great anxiety and alarm…………….. The expression "public servant" used in the Prevention of Corruption Act, 1947 is undoubtedly wide enough to denote every Judge, including the Judges of the High Courts and the Supreme Court………………………. No person is above the law. In a proceeding under Article 124 of the Constitution, a Judge can merely be removed from his office. He cannot be convicted and punished. In a case where there is a positive finding recorded in such a proceeding against the Judge and on that ground he is removed from his office, it cannot be said that he will escape the criminal liability. In a civilised society the law cannot be assumed to be leading to such disturbing results…………………. It is not safe to assume that the Prevention of Corruption Act intended to make in its application any discrimination between the lower and the higher judiciary. There cannot be any rational ground on the basis of which a member of a higher judiciary may be allowed to escape prosecution while in identical circumstances a member of the subordinate judiciary is tried and convicted. Such an interpretation of the Act will militate against its constitutional validity and should not, therefore, be preferred…………… Section 5(1)(e) does not contemplate a notice to be served on the accused. If the prosecuting authority after making a suitable enquiry, by taking into account the relevant documents and questioning relevant persons, forms the opinion that the accused cannot satisfactorily account for the accumulation of disproportionate wealth in his possession the section is attracted.

FACTS OF THE CASE AS OBSERVED BY JUSTICE K.JAGANNATH SHETTY:- This appeal by certificate under Articles 132(1) and 134(1)(e) of the Constitution has been filed by the former Chief Justice of the Madras High Court against the Full Bench decision of the same High Court refusing to quash the criminal proceedings taken against him. The appeal raises the questions of singular importance and consequence to Judges of the High Courts and this Apex Court. The central issue is whether the Judges could be prosecuted for offence under the Prevention of Corruption Act, 1947 ('the Act'). The background of the case in the barest outline is as follows: The appellant started his life as an Advocate in the High Court of Madras. He joined the Madras Bar in 1941. In 1953 he was appointed as Assistant Government Pleader. In 1959 he became Government Pleader. He held that post till 20 February 1960 when he was elevated to the Bench as a permanent Judge of the Madras High Court. On 1 May 1969, he became the Chief Justice of the Madras High Court. During his tenure as the Judge and Chief Justice he was said to have acquired assets disproportionate to the known source of income. The complaint in this regard was made to the Delhi Special Police Establishment ("CBI"). On 24 February 1976, the CBI registered a case against him with issuance of a First Information Report which was filed in one of the Courts at New Delhi. It was alleged in the First Information Report that taking into consideration the sources of income of the appellant as a Judge and Chief Justice of the High Court and the mode and style of his living with the probable expenses required during the period of his Judgeship/Chief Justiceship, it is reasonably believed that the appellant cannot satisfactorily account fox the possession of assets which are far disproportion he to his known source of income. It was further alleged that he has committed offences under Section 5(2) read with clauses (b)(d) and (e) of Section 5(1) of the Act. On 28 February 1976, a copy of the First Information Report was personally taken by the Investigating Officer to Madras and it was filed before the Court of Special Judge, Madras. The appellant on coming to know of these developments proceeded on leave from 9 March 1976 and subsequently retired on 8 April 1976 on attaining the age of superannuation. The investigation of the case by CBI was however, continued with the culmination of filing a final report. On 15 December 1977, a final report under Section 173(2) of the Code of Criminal 'Procedure (Cr. P.C.) was filed against the appellant before the Special Judge, Madras. The report under Section 173(2) is generally called as the charge sheet, and we would also prefer to term it as the charge sheet. The charge sheet inter alia states that the appellant after assuming. office as the Chief Justice of Madras gradually commenced accumulation of disproportionate assets etc. That for the period between 1 May 1969 to 24 February 1976, he was in possession of the pecuniary resources and property disproportionate by Rs.6.41,416.36 to the known sources of income over the same period. It was in his own name and in the names of his wife Smt. Eluthai Ammal and his two sons Shri V. Suresh and Shri V. Bhaskar. The appellant cannot satisfactorily account for such disproportionate assets. The appellant has thereby committed the offence of criminal misconduct under clause (e) of Section 5(1) which is punishable under Section 5(2) of the Act. The particulars of the disproportionate assets and the income of the appellant during the aforesaid period have been fully set out in the charge sheet. On perusing the charge sheet the learned Special Judge appears to have issued process for appearance of the appellant but the appellant did not appear there. He moved the High Court of Madras under Section 482 of the Cr. P.C. to quash that criminal proceedings before the High Court he contended that the proceedings initiated against him were unconstitutional, wholly without jurisdiction, illegal and void. The Full Bench of the High Court by majority view has dismissed his case. However, in view of the importance of the Constitutional questions involved in the case the High Court granted certificate for appeal to this Court. It may be noted that before the High Court every conceivable point was argued. They are various and varied. We may briefly refer to those contentions not for the purpose of examining them, since most of them have not been pressed before us, but only to indicate as to how the appellant projected his case. It was inter alia, contended that the Judges of the High Court and Supreme Court shall not be answerable before the ordinary criminal courts but only answerable to Parliament. The Parliament alone could deal with their misbehaviour under the provisions of Articles 124(4) and (5) read with Articles 217 and 218 of the Constitution. The Judge shall hold office until the age of superannuation subject to earlier removal for proved misbehaviour or incapacity. This protection to Judges will be defeated if they are compelled to stand trial for offence committed while discharging duties of their office even before retirement. Even the Parliament or the State Legislatures are not competent to make laws creating offences in matters relating to discharge of Judge's duties. Any such law would vitiate the scheme and the federal structure of the Constitution particularly the scheme of Article 124(4) read with Article 2 17 and 2 18. If the Legislatures are held to have powers to create offence for which Judges could be tried in ordinary criminal Courts then, it may affect the very independence of the Judiciary and the basic structure of the Constitution. Though the definition of "public servant" under Section 21 of the Indian Penal Code may include a Judge of the Higher Judiciary, since the Judge is not 'employed in connection with the affairs of the Union or State', the definition Should be narrowed down only to Judges other man the Judges of the Higher Judiciary. The jurisdiction of the CBI to register the case against the appellant and to investigate the offence was also questioned. The issuance of the First Information RepOrt and the subsequent filing of the charge sheet were impeached. It was alleged that they were actuated by collateral considerations. Alternatively, it was claimed that even assuming that all the allegations against the appellant are true, it will not constitute an offence under clause (e) of Section 5(1) of the Act since ingredients of the offence are not present in the case. The last and perhaps the most important contention urged before the High Court was regarding the necessity to obtain prior sanction from the competent authority for prosecution of the appellant as required under Section 6 of the Act. And since there was no such sanction obtained the Court has no jurisdiction to take cognizance of the case. Mr. Justice Mohan, with whom Mr. Justice Natarajan, (as he then was) joined rejected all the contentions in a well considered judgment. The views expressed by Mohan, J., on all the issues except on the last one need not be set out here since all those issues have not been raised before us. On the last aspect relating to the requirement of prior sanction for prosecution of the appellant, the learned Judge, held that since the appellant has retired from service and was no longer a 'public servant' on the date of filing the charge sheet, the sanction for his prosecution required under Section 6 of the Act is not warranted. The third Judge Mr. Justice Balasubramanyan in a separate judgment has concurred with the majority views on most of the questions. He has however, differed on three points out of which one alone need be mentioned. The other two have not been supported before us by counsel for the appellant. The learned Judge has dealt with the ingredients of the offence under clause (e) of Section 5(1) with which the appellant was charged. While analysing ingredients of the offence, he went on to state that the gist of the offence is not the possession of assets merely. Nor even the sheer excess of assets over income, but the inability of the public servant in not being able to satisfactorily account for the excess. He observed that clause (e) of Section 5(1) of the Act places the burden of establishing unsatisfactory accounting squarely on the prosecution. In order to properly discharge this burden cast by the section, it Would be necessary for the Investigating Officer first of all to call upon the public servant to account for the disproportionate assets. He must then proceed to record his own finding on the explanation of the public servant. He must state whether it is satisfactory or not. And the offence complained of under clause (e) of Section 5(1) is not made out without such exercise and finding by the Investigating Officer. The learned Judge, however, was careful enough to modulate his reasoning so that it may be in conformity with the constitutional protection guaranteed to the accused under Article 20(3) of the Constitution, Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. The learned Judge said that in view of Article 20(3) the Investigating Officer has no power to compel the accused to give his explanation for his disproportionate assets, but he must necessarily ask the public servant for an account. In this case. the accused-appellant has voluntarily submitted his statement of assets and income to the Investigating Officer in the course of investigation. Balasubramanyan, J., however, seems to have ignored that statement and focussed his attention on the default of the Investigating Officer in not calling upon the appellant to account for the disproportionate assets.' In that view, he held that the chargesheet could not be sustained and accordingly quashed the prosecution. Before us, counsel for the appellant advanced only two propositions. The first concerns with the ingredients of the offence alleged and the requirements of the charge-sheet filed against the appellant. It also involves the duties of the Investigating Officer. In this regard counsel sought to support the views expressed by Balasubramanyan, J., in his dissenting judgment. The second proposition relates to the inapplicability of the Act to Judges of the High Courts and Supreme Court. The essence of the submissions made on this aspect is based on the special status and role of Judges of the higher judiciary and in the need to safeguard judicial independence consistent with the constitutional provisions.

Justice SHARMA, J. Observed that: “The State is an organisation committed to public good; it is not an end in itself. Its different branches including the legislature, judiciary and the executive are intended to perform different assigned important functions. Judiciary has a duty to dispense justice between person and person as also between person and State itself. To be able to perform its duties effectively the Judges have to act "without fear or favour, affection or ill will". They must, therefore, be free from pressure from any quarter. Nobody can deny this basic essence of independence of judiciary. But for the judiciary to be really effective, the purity in the administration of justice and the confidence of the people in the courts are equally essential. It is to achieve this end that the higher judiciary has been vested with the power to punish for its own contempt. This has become necessary so that an aggrieved or misdirected person may not cast aspersions on the court which may adversely affect the public confidence. If the community loses its faith in the courts, their very existence will cease to have any meaning. A person with a just cause shall not approach the court for a legal remedy, if according to his belief the decision of the court would be given on extreneous consideration and not on the merits of his claim. People will return to the law of the jungle for settling their dispute on the streets. These aspects are common for the entire judiciary, whether Higher or Subordinate, and to my mind no classification is permissible separating one category from another.

RAY, J. observed that: The same view about the independence of the judiciary from the control of the executive has been spelt out by the observations of the Constitution Bench of Seven Judges in the case of S.P. Gupta & Ors. v. President of India and Ors., AIR 1982 (SC) 149. "The concept of independence of judiciary is a noble concept which inspires the Constitutional Scheme and constitute the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse of abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse or power by the executive and there it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth's case (AIR 1977 SC 2326) (supra). But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions. Namely fearlessness of other power centres economic or political, and freedom from prejudices acquired and nourished by the class of which the Judges belong. If we may again quote the eloquent words of Justice Krishna Iyer: "Independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government's pleasure. The tyceon, the communalist, the parochialist, the faddist, the extremist and radical reactionary lying coiled up and subconsciously shaping judicial menrations are menaces to judicial independence when they are at variance with parts III and IV of the Paramount Parchment". Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says "Be you ever so high, the law is above you." This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.

Jutice K. JAGANNATHA SHETTY, J. Observed that The Act was intended to cover all categories of public servants. The apparent policy of the legislation is to insure a clean public administration by weeding out corrupt officials. The Preamble of the Act indicates that the Act was intended to prevent more effectively the bribery and corruption by public servants. This Court has an occasion to examine the broad outlines of the Act. Imam. J., in S.A. Venkataraman v. The State, [1958] SCR 1040 while, analysing the provisions of the Act observed (at 1048): "that the provisions of the Act indicate that it was intention of the legislature to treat more severely than hitherto corruption on the part of a public servant and not to condone it in any manner whatsoever."

Reference may also be made to the observations of Subba Rao. J., as he then was, in M. Narayanan v. State of Kerala, [1963] 2 Suppl. SCR 724. The learned Judge said that the Act is a socially useful measure conceived in the public interest and it should be liberally constured. To quote his own words (at 729): "The Preamble indicates that the Act was passed as it was expedient to make more effective provisions for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public Servant. Bribery is a form of corruption. The fact that in addition to the word 'bribery' the word 'corruption' is used shows that the legislation was intended to combat also other evils in additon to bribery. The existing law. i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under ss. 161 and 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well-known principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them." It is inappropriate to state that conviction and sentence are no bar for the Judge to sit in the Court. We may make it clear that if a Judge is convicted for the offence of criminal misconduct or any other offence involving moral turpitude, it is but proper for him to keep himself away from the Court. He must voluntarily withdraw from judicial work and await the outcome of the criminal prosecution. If he is sentenced in a criminal case he should forthwith tender his resignation unless he obtains stay of his conviction and sentence. He shall not insist on his right to sit on the Bench till he is cleared from the charge by a Court of competent jurisdiction. The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken. The Judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial independence and may not command confidence of the public. He must voluntarily withdraw from the judicial work and administration. The emphasis on this point should not appear superfluous Prof. Jackson says "Misbehaviour by a Judge, whether it takes place on the bench or off the bench, undermines public confidence in the administration of justice, and also damages public respect for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired. This must be so when the judge commits a serious criminal offence and remains in office". There are various protections afforded to Judges to preserve the independence of the judiciary. They have protection from civil liability for any act done or ordered to be done by them in discharge of their judicial duty whether or not such judicial duty is performed within the limits of their jurisdiction. That has been provided under Section 1 of the Judicial Officers Protection Act, 1850. Likewise, Section 77 IPC gives them protection from criminal liability for an act performed judicially. Section 77 states that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law". A discussion on the conduct of Judges of the High Courts and the Supreme Court in the discharge of their duties shall not take place in the State Legislatures or in Parliament (Articles 12 1 and 211). The High Courts and the Supreme Court have been constituted as Courts of record with the power to punish anybody for committing contempt. (Articles 129 and 215). The Contempt of Courts Act, 1971 (Act 7-0-71) provides power to the Court to take civil and criminal contempt proceedings. But we know of no law providing protection for Judges from Criminal prosecution. Article 361(2) confers immunity from criminal prosecution only to the President and Governors of States and to no others. Even that immunity has been limited during their term of office. The Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking of bribes or with regard to the offence of corruption the sanction for criminal prosecution is required.

BY CONCLUSION LET US QUOTE FROM WORDS OF JUSTICE:- In S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., 1982] 2 SCR 365 it was clearly pointed out that “Not to have a corrupt Judge or a Judge who has misbehaved is unquestionably in public interest but at the same time preserving judicial independence is of the highest public interest. It is a question of choosing the lesser evil and in inevitable course has to' be adopted not for the protection of the corrupt or dishonest judge but for protecting several other honest, conscientious and hard-working Judges by preserving their independence; it is a price which the Society has to pay to avoid the greater evil that will ensue if judicial independence is sacrificed.”

CASE LAW ON LAND REVENUE COURT MATTERS

Bharat Singh And Anr vs Bhagirathi AIR 1966 SC 405, FACTS:- The appellants filed a suit for a declaration that the entry in the name of the respondent in the Jamabandi papers of certain villages was incorrect and alleged that they along with their brother, the husband of the respondent, constituted a joint Hindu family, that their brother died as a member of the joint Hindu family and thereafter his widow- the respondent--lived with the appellants who continued to be owners and possessors of the property in suit, the widow being entitled to maintenance only, and that by mistake the respondent's name was entered in village records in place of the deceased husband. The respondent contested the suit alleging, inter alia, that her husband did not constitute a joint Hindu family with the appellants at the time of his death and also that the suit was barred by time as she had become owner and possessor of the land in suit in 1925 on the death of her husband when the entries in her favour were made, and the suit was brought in 1951. The respondent had admitted in certain documents about the existence of the joint Hindu family or a joint Hindu family firm. HELD:- There is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of joint Hindu family to establish it. The mere fact of the mutation entry being made in favour of the respondent on the death of her husband was no clear indication that there was no joint Hindu family of the appellant, and the respondent's husband at the time of the latter's death. In STATE OF HARYANA v. MOHINDER PAL the Supreme Court rejected an appeal filed against a decision of the Punjab and Haryana High Court which had held that the Government cannot take law into its own hand while dispossessing persons in possession of land by putting up khokhas (on the ground that they were unauthorized occupants to Government land) but should have followed the due procedure prescribed by law. The Supreme court held that: ".... Question of examining the title of the parties does not arise at all as admittedly respondents were in possession of the property in question and put up structures thereon. On that admitted position, High Court took the view that ejectment of the respondents forcibly without due recourse of law was not in due process. No exception can be taken to that view at all. In fact, this view is consistent with what has been stated by this Court........" In PATIL EXHIBITORS PVT. LTD. v. BANGALORE CITY CORPORATION a Division Bench of KARNATAKA HIGH Court observed thus: "It is part of the concept of "Rule of Law" that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognized or countenanced by Courts. Such a right in the respondent cannot be recognised regardless of the question whether or not the appellant (Licencee) itself has any subsisting right to remain in possession. The protection that the Court affords is not of the possession which in the circumstances is litigious possession and cannot be equated with lawful possession but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title, there can be not forcible dispossession. .... Under our jurisprudence, even an unauthorized occupant can be evicted only in the manner authorized by law. This is the essence of the Rule of law." In MUNSHI RAM v. DELHI ADMINISTRATION the Supreme Court succinctly stated the legal possession regarding settled possession thus; "It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But, stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitle to defend against the rightful owner much be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary, such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force." The principle was further elaborated by the Supreme Court in RAM RATTAN v. STATE OF UTTAR PRADESH as follows: "..... It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or prices of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the owner should dispossess the trespasser by taking recourse to the remedies available under the law..... it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished" In the decision reported in BABU VERGHESE v. BAR COUNCIL OF KERALA, AIR 1949 SC 1281 it is held that the power conferred upon the statutory Authority in the statute must be exercised in the manner as prescribed in the statute. It is the basic principle of law long settled that if the manner of going a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all". This rule has since been approved by Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, and again in Deep Chand v. State of Rajasthan, . These cases were considered by a Three judge Bench of Karnataka High Court in State of Uttar Pradesh v. Singhara Singh. In Mahadevappa And Ors. vs State Of Karnataka ILR 2008 KAR 1750 Hon’ble Justice H.V.G. Ramesh, Observed and directed state government with following words: ………………..As per Section 17 of the Indian Registration Act, it is compulsory that property valued more than Rs. 100/- has to be registered. That conveys and sanctions such transfer from one person to the other. It is often noticed that property is being sold by a person in favour of several persons taking advantage of the anomaly of want of specific entries in the revenue records. Any prudent person before purchasing a property would necessarily approach the revenue authorities seeking for clarification or issuance of an endorsement as to the possession or encumbrance on the property and that would form the basis for him to go for negotiations and to purchase the property or get the property transferred in his name in any mode of transfer provided under the Transfer of Property Act. It is being noticed that neither the purchaser nor the registering authority are performing their obligations soon after such transfers are taking place by way of registration and re-conveyance and transfer the title or interest from the vendor to the vendee or transferee. In this regard what is being noticed is, when the original entries in the revenue records continue even after such transfers or assignments, the person who is interested in purchasing the property is being mislead on some assurance or some false promise and gets into problems in fighting litigation with the prior purchasers…………………. If the said fact of earlier sale or transfer would not have been disclosed by the original purchaser or registering authorities it not only leads to multiplicity of proceedings but also causes financial hardship to the subsequent purchasers of the same property which had been sold earlier to some other purchaser. For want of knowledge, even for an ordinary man of prudence mere enquiry with the revenue authorities would not be sufficient because of the fact the revenue authorities have only maintained the original entries in the usual course as is noticed in the years of practice, without making proper timely entries of such change of title from the original owner to the subsequent purchase or from original transferor to the tranferee. This anomaly is invariably found in all the records maintained for want of compliance of the provisions of Section 128 and 129 of the Karnataka Land Revenue Act, 1964 although the Act mandates such entry to be made within a reasonable time after following the procedure under the said sections. For want of such strict compliance by the purchaser or for lack of responsibility and inaction on the part of the registering authorities in intimating this aspect to the revenue authorities well within time, the ordinary man is forced to go through the ordeal of fighting litigation and often it is also being noticed even in respect of carrying out mutation entries on subsequent changes like succeeding to the property as legal heirs on the death of the original propositus, such anomalies are occurring and even the lands which are notified for acquisition are also notified in the name of the original kathedar in whose name the property stands although he has died several years back, for want of entries of the names of persons who succeed him and who are in real possession or cultivation of the property are not notified. These anomalies have to be rectified to avoid all such complications and it requires due compliance of Section 128 & 129 of the Land Revenue Act. Though the law is clear on the point, but it is either not meticulously followed or being implemented and thus causing various litigation and hardship to the parties and also at the cost of the State exchequer as well……………………… Of course, while referring to the right of this petitioner what is being noticed specifically is the anomaly that is being invariably found and neglected by the revenue authorities all because of non-compliance of the provisions of Section 128 & 129 of the Land Revenue Act which is clear as is noted above. It is time to remind the Government to take timely action to make necessary changes from time to time in the revenue records. The Sub-registrars are duty bound to intimate the revenue authorities in time as per Section 128(4) to avoid multiplicity of litigation from the hands of unscrupulous vendors who once again transfer the property although a transaction has already taken place in the hands of one of the purchasers and the timely action of the revenue authorities would form the basis for any subsequent purchaser who intends to purchase the property over whom fraud could not be played by the original transferor or the vendor when there is a transfer from the first party to the second party and thereby once again the first party shall not venture to transfer title or interest to a third party or any other person for lack of knowledge of the intended subsequent purchaser…………………. For want of these entries in the revenue records and for want of proper information from the concerned Department of the Government, often purchasers are being mislead and get into problems and hardship. It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications. Mariam Hussain W/O. Zaheed Hussein vs Syedani W/O. Late Syed Mustafa And Ors. ILR 2007 KAR 2715 JUSTICE N. KUMAR OBSERVED: It is to be noticed here that Ex.P-1, is not a simple agreement of sale entered into between the parties voluntarily where one party is interested in selling his property and the other interested in purchasing the property, after mutual discussion and negotiation agreed on a price and then reduce the terms in writing. It is a case of want of consensus ad-idem. Similarly execution of a document does not mean signing of a document. The word "execution" has a definite connotation in law. The person signing the document must be aware of the contents of document and consciously sign the document in token of acceptance of the contents of the said document. If the execution of a document is denied it is for the party who alleges the due execution to prove by acceptable evidence that the executant affixed his signature to the document after being aware of the contents of the document and in token of its acceptance so as to bind him. When it is stated that the executant executed an agreement of sale it must be shown that the executant had agreed to sell the property end in token of acceptance of such agreement he has affixed his signature on the said agreement of sell. The evidence on record do not disclose that the defendant affixed his signature to the the suit document agreeing to sell the schedule property in favour of the plaintiffs or in view of the decision of Panchayatdars or on the basis of what was agreed to in the said Panchayat. Therfore the finding of the courts below that the agreement of sale is duly executed by the first defendant, as it bears his signature on the document is illegal. ………………… The material on record disclose that this property was granted to the first defendant 30 years prior to the date of the suit. Mutation entries were made in his name. Attempt to delete the said mutation entry by the plaintiff was not successful. The defendant also obtained a decree of permanent injunction against the plaintiff. The material on record shows that he was cultivating the land and he has raised (sic) trees and on 18.08.1982 he has handed over possession of the property from that day till today. Ignoring all these material evidence on record only relying on the interested testimony of the plaintiff and his witness, whose evidence, as already stated do not infuse confidence, the courts below have recorded a finding that the plaintiff is in possession and the first defendant in not in possession. The said finding is perverse and capricious and cannot be sustained. The High Court of Jammu and Kashmir in the case of Hardatt Sharma v. Jaikishen Shamlal & Sons reported AIR 1983 J & K-page No. 36, held as under: ...True, Under Section 18 of Evidence Act, statements made by persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are binding on such parties as their admission, nevertheless, before the same may bind them, it has further to be shown that the statements were made by those persons during the continuance of their interest in the subject matter, and obviously so, because, if would be highly unjust and improper to divest a person of his right in the property, lawfully acquired by him form another, on the basis of the latter's admission after his own interest in the property has ceased to exist. Chapter VI of the Karnataka Land Revenue Act, 1964 (hereinafter called 'the Act') deals with maintenance of Record of Rights. Section 128 deals with acquisition of rights to be reported, Section 129 deals with registration of Mutations and the procedure for such registration, Section 129A deals with issue of patta book containing the copy of the Record of Rights pertaining to such land. Section 130 deals with the obligation to furnish information for compilation or revision of the Record of Rights and as to the bar of suits against the State Government or its officials in respect of daims for having the entry made in the Record of Rights, reserving expressly the right to seek a correction of the entry in the Record of Rights against persons who are interested in denying such a right. It is clear from the above provisions that the entries in the Record of Rights made after enquiry as provided for in Section 129 of the Act is always subject to a final adjudication of the rights between the parties to the land in question. At this stage, it is also necessary to observe and reiterate that the enquiry is essentially summary in nature.