Voters do not want cheer brigades or persons who stall proceedings in Parliament or in the Assembly due to the lack of education and vision, the bench said.

The Calcutta High Court has expressed the ‘hope’ that parliamentarians would consider amending the Representation of People Act to ensure that individuals contesting elections to state Assemblies or Parliament have a minimum educational qualification.

Though it did not issue any direction while disposing of a public interest litigation filed by one Akshya Kumar Sarangi, the bench comprising Acting Chief Justice Nishita Mhatre and Justice Tapabrata Chakraborty said voters have a right to be governed by persons who are educated and consequently knowledgeable.

“Voters do not want cheer brigades or persons who stall proceedings in Parliament or in the Assembly due to the lack of education and vision. It is difficult to fathom how a person who is barely able to sign his name would be able to understand the complexities of issues which crop up in Parliament. Education would enable legislators to widen their horizon, display their innate wisdom and maturity by rising above pettiness, parochialism and narrow mindedness,” the bench said.

The court said that it is difficult to accept that legislators, despite their native wisdom, should be permitted to represent the people of India without having any basic academic qualification. What should be the basic qualification is something that the legislators would have to decide, keeping in mind that even for a peon’s job a person is required to have a secondary school certificate at the very least, the bench remarked.

The court also added that the legislators have to often deal with foreign governments and their representatives, and it is important to ensure that our representatives do not lag behind others in the world only because of the lack of education.

The Union Minister for Women and Child Development, Ms. Maneka Gandhi has reportedly decided to set up a POCSO Victims Compensation Fund to provide financial support to children who are victims of sexual crimes.

The announcement was made as a response to a letter seeking her attention to the plight of a three-year old, who was allegedly sexually assaulted and found abandoned at a railway station in Ahmadnagar in Maharashtra.

The Fund will draw financial resources from the Nirbhaya Fund. A ‘Childline’ has also been put in motion to take care of the child, and assist the concerned officer in tracing the parents.

About the Nirbhaya Fund

The Nirbhaya Fund was set up by the Government in its 2013 Union Budget with a corpus of Rs. 1,000 crore. According to then Finance Minister, Mr. P. Chidambaram, this fund was expected to support initiatives by the Government and NGOs working towards protecting the dignity and ensuring safety of women in India.

The Women and Child Development Ministry was made the nodal agency for Nirbhaya Fund in April, 2015, replacing the Home Ministry, which had utilized only one percent of the funds.

Encroaching into the right of the other organ of the government would tantamount to clear violation of the rule of law, which is one of the basic structures of the Constitution of India, the Bench said.

The Supreme Court, in CBI vs. Sadhu Ram Singla, has observed that judicial restraint need to be observed while quashing criminal cases of non-compoundable nature on the basis of settlement arrived between the parties.

“Encroaching into the right of the other organ of the government would tantamount to clear violation of the rule of law, which is one of the basic structures of the Constitution of India,” observed the bench comprising Justice Pinaki Chandra Ghose and Justice Amitava Roy while dismissing an appeal by the Central Bureau of Investigation.

The appeal was preferred by the CBI against the Punjab and Haryana High Court order quashing an FIR in cheating and forgery case on the basis of a compromise arrived between the accused and the complainant bank. The CBI, relying on Manoj Sharma vs. State & Ors, contended that since the offence is a non-compoundable nature, it was not a legitimate exercise of judicial power to direct compounding of a non-compoundable offence.

However, the bench observed that, in the instant case, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties. The bench though dismissed the appeal, said it would be proper to keep the said point of law open.

Read the Judgment here.

The Supreme Court’s dismissal of Dangwimsai Pul’s “petition” seeking a probe into the allegations mentioned in her husband, and former chief minister of Arunachal Pradesh, Kalikho Pul’s “suicide note”, as withdrawn, has led to a controversy.

The Supreme Court, in its order, has defended its hearing of Dangwimsai Pul’s letter to the Chief Justice of India, Justice J.S.Khehar, in this connection on the judicial side, by converting it as a writ petition, as follows:

“This petition has been listed in pursuance of the order of Hon'ble The Chief Justice of India. In view of the fact that there are allegations in the Annexure to the petition against number of political persons and even the President of India, the matter was considered to be of public importance.”

During the hearing of the case on February 23, Dangwimsai Pul’s senior counsel, Dushyant Dave, had questioned precisely this, asking how the Court could hear it on the judicial side, when her plea was to deal with it on the administrative side. Firstly, he suggested that the CJI could not have chosen a bench to hear this case, as he has been named by Kalikho Pul in his “suicide note”.

Secondly, the fact that the names of CJI and the No.2 Judge in the Supreme Court could find place in the note by Kalikho Pul, would mean that the matter must have been dealt with in accordance with the Supreme Court’s judgment in K.Veeraswami v Union of India, delivered in 1991.

Dangwimsai Pul invoked the administrative jurisdiction of the Chief Justice of India, in terms of the Veeraswami judgment, as the police sat on her husband’s “suicide note”, without taking any further action on it, for the past six months.

Alok Prasanna Kumar, an advocate based in Bengaluru, and who has been a Senior Resident Fellow of the Vidhi Centre for Legal Policy, answers Livelaw’s questions on certain aspects of this controversy.

Alok is the author of the widely-read  newsletter, “The Contumacious Curmedgeon”, a hilarious weekly update on law, courts, and other institutions in India and elsewhere.

LIVELAW: The former Arunachal Pradesh CM, Kalikho Pul's so-called suicide notes has led to a turmoil in the Apex Court. As you observed in Quint in your recent piece, the SC appears to have messed up the entire issue, by hearing it on the judicial side. What difference it makes whether the Apex Court decides the issue on the administrative or judicial side? Can you explain?

ALOK PRASANNA KUMAR:The difference lies in the procedure being adopted. There is no requirement to give a full hearing to parties or to hold open court hearing for what is essentially an administrative order. Further, an order passed on the judicial side by a court with no jurisdiction is null and void. The Supreme Court had no jurisdiction to hear this “letter petition” since it was not filed as a writ petition nor was it listed for suo motu hearing. Any order passed would have been null and void. There was no legal dispute here or question of fact or law to be decided.

LIVELAW: Indian Express story on Friday (February 24) said that the Government doubts whether it can be called a suicide note, because Pul did not mention that he was going to commit suicide in that note. Therefore, what is its legal status?

ALOK PRASANNA KUMAR: Since there are no active legal proceedings going on in the context of the note, it would not be possible to say what the legal status of the note is. If any proceedings are begun, the note would have to be introduced as evidence and proved as having been written and authored by Kalikho Pul before his death. Until then it is just an ordinary document.

LIVELAW: Assuming it is a suicide note, can it be treated on par with a Dying Declaration? He wrote the note on August 8, 2016, and committed suicide the following day. Therefore, at the time of writing the note, was he under the influence of someone, who knew that he was going to die the next day, is the question that is likely to come up in the investigation. Also, why should anyone writing the note sign on every page, and counter-sign every correction? That seems very unusual.

ALOK PRASANNA KUMAR: I cannot comment on this because this requires very specific knowledge of the circumstances in which this note was discovered and the timeline of events leading up to Kalikho Pul's death. The Arunachal Pradesh police ideally should have undertaken an in-depth investigation into circumstances and facts surrounding Kalikho Pul's death.

LIVELAW:Which paragraph of Veeraswami judgment says that a matter like this must be dealt with on the administrative side? Does it rule out judicial side altogether?

ALOK PRASANNA KUMAR: Paragraphs 59-60 of the majority judgment in the Veerasami case (delivered by Justices Shetty and Venkatachaliah) make it clear that the CJI has to be “consulted” on beginning criminal proceedings against HC and SC judges and his opinion is binding on judges.

The paragraphs say:

“The Chief Justice of India is a participatory functionary in the matter of appointment of Judges of the Supreme Court and the High Courts. (Articles 124(2) and 2 17(1).) Even for transfer of a Judge from one High Court to another the Chief Justice should be consulted by the President of India (Article 222). If any question arises as to the age of a Judge of a High Court,the question shall be decided by the President after consultation with the Chief Justice of India (Article 217(3)).

“Secondly, the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary. Hence it is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a Judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the Government in coming to the right conclusion.

“We therefore, direct that no criminal case shall be registered under Section 154, Cr. P. C. against Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered.

“If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the Government shall consult any other Judge or Judges of the Supreme Court. There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India. Accordingly, the directions shall go to the Government. These directions, in our opinion, would allay the apprehension of all concerned that the Act is likely to be misused by the Executive for collateral purpose. ”

This is analogous to consultation with the CJI in the context of appointment of judges and cannot possibly be a judicial proceeding since this is not the opinion of the court but just the CJI. As the Court explained in Veeraswami's case this is just the CJI acting in his capacity as the head of the Indian judiciary and not the judgment or decision of a court.

LIVELAW: Now that Mrs.Pul's petition has been dismissed as withdrawn, can it be entertained on the administrative side now by Justice Chelameswar? Can she directly approach Justice Chelameswar seeking a decision on the administrative side, since she can't approach either the CJI or Justice Dipak Misra, the No.2 in the Supreme Court's hierarchy?

ALOK PRASANNA KUMAR: I do not think so. There is no procedure under which an individual judge can be approached directly without approaching the CJI first in this context. The CJI doesn't have to take any decision but just forward the complaint to J Chelameswar for appropriate action.

LIVELAW: Do you think as Mrs.Pul’s counsel, Dushyant Dave erred in seeking the recusal of Justice Adarsh Kumar Goel. Many felt that the plea for recusal was the most effective strategy, because if the bench wanted to go ahead with the hearing, then the recusal plea would have been a hindrance. And as the order shows, the bench did ignore the recusal plea, and want to go ahead with the hearing, before Dave insisted on withdrawing.

ALOK PRASANNA KUMAR: Without commenting on the wisdom of the strategy in this case, I do not think it is fair to demand recusal from a judge in open court on the ground alleged by the petitioner in this case. Judges interact and work with each other daily and to deem this to make them automatically “biased” in favour of fellow judges is unfair. If the case should not have been heard on the judicial side at all, I am not sure what the point of demanding recusal of a judge is. By this line of reasoning, no judge of the SC can even take an administrative decision on the matter because they have “worked with” Justice Khehar.

LIVELAW: Can Mrs. Pul approach Justice Chelameswar directly for an administrative decision on the matter, even though on the judicial side, it has been dismissed by a bench? Is the Veeraswami judgment binding on Justice Chelameswar? Can there be a petition on the judicial side, asking Justice Chelameswar to decide the issue on the administrative side?

ALOK PRASANNA KUMAR:No, he cannot be approached directly. If the petitioner approaches the CJI again, he should just forward the letter to J Chelameswar for action. I don't think there can be petition compelling him to act.

LIVELAW:If the administrative door of the Supreme Court is closed for Mrs.Pul, what would be her remedies?

ALOK PRASANNA KUMAR: It would be wrong to say the “administrative door” is closed since there is no res judicata in such matters. She can make a fresh request on the basis that her letter was not properly responded to and that it was not forwarded to the appropriate judge for action.

LIVELAW: According to Veeraswami judgment, at what stage, an aggrieved person has to knock the doors of the President or Vice President for sanction to prosecute a Judge? Is it after the investigation is over? Is the sanction from the President or Vice President required only for framing of charges, after the investigation is over? If that is so, if the SC’s administrative decision is not forthcoming, then the investigation does not start, and the objective of approaching the Vice President for sanction is defeated, right?

ALOK PRASANNA KUMAR: As per Section 197 of the CrPC and Section 19 of the PoCA, sanction is needed at the stage of the court taking “cognisance” of a crime – i.e. At the time of framing charges. For a judge of the High Court or the Supreme Court, the authority to give sanction would be the President of India. This comes after the challan/chargesheet is filed in court post investigation and the trial court applies its mind to the question of whether accused has any case to be answered.

For High Court and Supreme Court judges, to avoid possibility of harassment, the Supreme Court has evolved one further step: the Chief Justice of India's permission is needed before an FIR is filed against a High Court or Supreme Court judge. If the CJI refuses to give permission or does not take a decision on this request, no investigation can begin by the police authorities.

I wouldn't like to speculate on a total hypothetical about the CJI refusing permission or refusing to take a decision on this, but it would reflect very poorly on the institution if the CJI did so.

LIVELAW: Do you think Mrs.Pul ought to have withdrawn her petition on the judicial side, and insisted that as long as the response from the administrative side is not given to her, her original letter to the CJI could not be withdrawn. Now, she seems to have landed herself in an anomaly, by withdrawing her petition, which effectively means that there is nothing to decide on the administrative side either.

ALOK PRASANNA KUMAR: Exactly. I'm still trying to make sense of the order because she didn't “file” any case to withdraw it. If I were in her position, I would have only pointed out that the court has no jurisdiction to “hear” her petition and should return the letter to the CJI for his action and close the proceedings.

LIVELAW: Government sources have told the Indian Express, that they are not keen on probing the issue, because it could bring down the reputation of Constitutional functionaries. Do you think the Government has any role to play in this matter, if as you say, only the Supreme Court can initiate investigation, by granting permission on the administrative side?

ALOK PRASANNA KUMAR: To clarify: an FIR is only registered by the concerned police authorities. An individual only gives the information by oral or written statements. Ideally it should have been the concerned police/government which approaches the CJI for permission to register the FIR if they feel an offence has been committed on the basis of the material provided to them by Mrs Pul. The Supreme Court is not initiating investigation so much as just giving permission to just go ahead with investigation by the police.

LIVELAW: What was the outcome in the Veeraswami case?

ALOK PRASANNA KUMAR: Justice Veeraswami was eventually acquitted of all charges in 2003.

In a 2010 judgment, in the case of Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd. [AIR 2010 SC 3607], a real estate company presented the argument that it is correct to sell stilt parking areas or garages as separate individual entities just like a flat, to those who do not own flats in the building and wish to use such entities as parking places. The Hon’ble Supreme Court judges- Justice A.K. Patnaik and Justice R. M. Lodha however,rejected this argument while stating that such independent units or flats cannot be sold to outsiders by builders/promoters since these areas are to be for a price to the purchasers of flats and the builder/promoter can only charge as towards common areas and facilities from each flat owner in proportion to the carpet area of the flat.

The judgement however, is being misconstrued by flat owners who have not purchased parking prior to the Supreme Court’s judgement of 2010. And they are in a bid to usurp the parking places purchased by co-flat owners who have paid huge amounts to the builders towards such places.Such flat owners who have not opted for purchasing parking places(hereinafter referred to as litigants)in turn, are creating problems for their co-flat owners by misinterpreting the judgement, which is to say, “even those who did not purchase parking area along with their flat are seeking a parking place by invoking this precedent.” This however, is unjust to the parking purchasers who have shelled out huge amounts to the builders to secure parking places. The argument from such litigants wanting to misuse this judgement is that, those who have paid heavy amounts towards the purchase of parking places, have done so at their own risk and have to forego their rights to such parking places.

It is pertinent to note that such litigants are fully aware that they have not paid to the builder any amount towards purchase of parking place while negotiating the purchase of a flat with the builder. It would also be relevant to state here that builders have sold such parking places at very high rates to the purchasers of such places along with flats.

The only defense for these litigants is the verdict on Nahalchand Laloochand v. Panchali by Supreme Court in the year 2010. This precedent is misused as the lower courts are not getting into the merits of this precedent, circumstances, premises, and case related obiterdicta. Hence, litigants are trying to invoke this precedent with retrospective effect, which in all likelihood, is poised to create multiple litigations and blur the exact position of the law.

Arguments- Unquoted

The Supreme Court has by default given the rights to non-purchasers of the parking, hence, invoking this precedent is the right of those who did not buy any parking from builders prior to 2010, the year of the Supreme Court Judgement. The aim of such litigants is to invoke the judgement as a precedent and if luck favors them, they can sell their flats at high premiums stating the availability of parking place, although they haven’t paid any amount for the parking place. These litigants are very much aware that the availability of parking place invariably increases the valuation of a flat. 

How far are these litigants’ claims legal?

• The universal applicability of the Supreme Court judgement would come into question as the laws have been amended subsequently by the legislature in Maharashtra.

• The Confederation of Real Estate Developers’ Association of India (CREDAI), Pune branch, said that though the Supreme Court has made it categorically clear that “stilt parking/open parking” cannot be sold as it does not fall under the definition of ‘flat’ or ‘garage’, it has also stated that the builder can charge for stilt parking/open parking under common area and facilities separately and give preferential treatment to such payers.

• The entire ruling of Nahalchand Laloochand v. Panchaliis based upon the meaning of the word "garage". According to the Hon’ble Supreme Court, the area closed by three sides and above used for parking is a garage. This logic puts stilt area enclosed by less than three sides or not at all enclosed in a different footing than the area covered by three sides. Moreover, in Nahalchand Laloochand v. Panchali, the builder sold the parking spaces as independent units to outsiders not belonging to the building, hence, the judgement needs to be seen in its obiterdicta from the said perspective rather than generalizing the same.

• The intent of the legislature is not to prevent the selling of parking spaces in a building by the builders to flat purchasers or to question the legitimacy of such purchases as is evident from Maharashtra Housing (Regulation and Development) Act, 2012 in Section 9(2), which directs the builder to sell the parking space, however, the builder needs to document the same as a part of the agreement for sale.Any document evidencing a payment to flat, common areas and parking is also equivalent to an agreement whether given to purchaser either prior to agreement for sale or mentioned as a part of agreement for sale. 

• Prior to the legislation in 2012, the MOFA-1963 was absent on the part of selling the parking and it was the MCS Act- 1960 through its standard bye-laws has allowed the builders to sell the parking spaces prior to formation of a society. But, after the formation of a society, a builder ceases to have the right to sell the parking spaces as the unsold parking spaces become the property of the society. Based on this builders have resorted to selling the parking spaces prior to the formation of the society, to the purchasers of the flats in the building. Here, one more point noteworthy is that using this precedent, litigants are putting even such flat owners to difficulty where the parking place has been registered along with the agreement for sale of the flat. 

• Some purchasers exercised their decision to not buy parking places and restricted their ownership to their flat alone and thus had the privilege of paying lesser amount to the builder when compared to a flat owner who purchased even a parking place. Further, when a builder sold the flat and also sold the parking space prior to formation of a society, the activity is considered to be legitimate as there is a binding contract between the builder and the purchaser.

• The applicability of MCS Act – 1960 and MAOA- 1970 is after submission of the building to the provisions of these Acts, which is a decision of the flat purchasers based on the terms and conditions of agreement for sale. In such a scenario, what if, the agreement for sale stipulates a formation of a limited company for the building and such limited company gets governed under Companies Act based on the memorandum and articles of association? Hence, the enabling MCS Act or MAOA Act cannot be contradictory to the MOFA – 1963 or Maharashtra Housing (Regulation and Development) Act, 2012.

• The subordinate MCS Act or MAOA Act cannot create impediments to the purchasers of flats who buy the parking areas and such purchasers should be able to enjoy the same without any impediments.

• The persons who opted for no-parking and bought only flats at lesser prices have had their advantage and they cannot take Nahalchand Laloochand v. Panchali in their stride as the case involves those who have bought parking but have not bought a flat in the same building premises.

The facts of Nahalchand Laloochand v. Panchali are as follows:

Initially each of the flat owners had signed a declaration that the stilt parking areas/open parking places belong to the promoter who could sell them as per his wish and the society has no objection whatsoever. However, the society later argued that it is contrary to law and hence not binding.

Following this dispute, the promoter sought the court’s intervention in seeking “permanent injunction limiting the society from encroaching upon, trespassing and/or in any manner disturbing, obstructing or interfering with its possession in respect of 25 parking spaces in the stilt portion of the building”.

When the City Civil Court dismissed the suit, the developer filed a first appeal in the High Court which was also dismissed, following which the developer sought the intervention of the Supreme Court.

 The Hon’ble Supreme Court, after an extensive study of the case, concluded that parking areas cannot be termed as garages or separate flats for convenience of sale as separate entities devoid of ownership of flats in the society.

Also, the Court highlighted that the word “flat” should be considered as intended. The phrase “and includes a garage“ mentioned within brackets does not include the entity ‘garage’ within the meaning of the word ’flat’.Otherwise, it should have been expressed clearly.

The Supreme Court further stated that open areas and stilt areas can be used asparking spaces, however, under MOFA, such areas cannot be treated as garage. ‘Garage’ as per MOFA would be understood by a flat owner as a structure which has a roof and walls on three sides.There was also a mention that just as a developer/promoter cannot separate out common passage/lobbies and staircases from “common areas and facilities”, so also, parking spaces also fall under the purview of “common areas and facilities”.

MOFA stipulates that the common areas and facilities have to be clearly spelt out in the advertisement as well as in the “agreement” with the flat purchaser and it is illegal to not clearly spell out these provisions. The promoter is also entitled to charge for the common areas and facilities from each flat purchaser an amount in proportion to the carpet area of the flat. Even if the promoter has not mentioned the stilt parking spaces and garages clearly, they still would be part of the “common areas and facilities”.

Conclusion

In Nahalchand Laloochand v. Panchali, the Hon’ble Supreme Court did not say that parking areas cannot be sold to the flat purchasers in the building. It only considered such selling to non-flat owners in the building and decided the case. While deciding so, it has come out with a fabulous obiter dicta that the builder while selling the carpet area of the flat also charges for the common areas, hence, there is no need to specifically sell the parking areas. However, a flat owner who opted for no-parking and bought only a flat had his benefit of lower price for his flat when compared to the purchasers of parking prior to 2010 and the litigants’ purchase price being low, they stand no chance to invoke in the interests of equity and justice Nahalchand Laloochand v. Panchali which otherwise is detrimental to the interests of those who purchase the flat along with the parking space.

Dr. V.V.L.N. Sastry is a Researcher in Law at Walden University, U.S.A

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

Chief Justice of India J.S. Khehar on Wednesday said that the Memorandum of Procedure is expected to be finalized in two weeks. The CJI also shed light on recent judicial appointments. “We made recommendations for appointment of judges to SC and that has come through. We’ve also made recommendations for filling up eight vacancies of Chief Justices of HCs,” he was quoted as saying.

“We have been at it regularly for hours almost every day trying to finalize Memorandum of Procedure, expect to finalize it in next two weeks. I assure you we will try our best for early disposal of cases,” he added.

CJI Khehar was attending the launch of the book ‘Judicial Reforms – Recent Global Trends’, which has been authored by Mr. Dalveer Bhandari, a Judge at the International Court of Justice. It is brought out by the India International Law Foundation, and is the outcome of a Seminar on ‘Recent Trends in Judicial Reforms: A Global Perspective’ held in January 2013 in New Delhi.

During the function, President Pranab Mukherjee received first copy of book from Prime Minister Narendra Modi at Rashtrapati Bhawan.

President Pranab Mukherjee also addressed the gathering, and opined that the country's judicial system, which was raised more than six decades ago, requires major changes. “Reform, I mean. Change is a continuous process. It cannot be stop and go. Every system with course of time develops certain clogs within itself. There is need for constant change,” he said.

He was of the view that while there’s no lack of talent, there was a need to have a system in place to utilize the talent expeditiously. “The simple point which I am trying to drive at is that it is high time for all of us to collectively not only think but also to act how to address these issues. Without Bench, without adequate infrastructure, we cannot have any sort of reforms worthwhile,” he was quoted as saying.

He further drew the attention of those present, towards Allahabad High Court, which he said, during his tenure, saw less than 50 per cent of its sanctioned posts of 180 judges being filled. “If this situation of the higher judiciary is so bad, one can imagine the conditions of the lower judiciary,” he thereby said.

Meanwhile, PM Modi opined that efficient governance was needed in order to reduce the burden on the judiciary. He also spoke about redundant laws, and brought into light the fact that he has till date discarded 1,200 of them.

“Our aim should not only to hold up in the changing global order but we should have our voice also. And it will happen when we will become powerful and our policies, rules, behavior will be in accordance with the expectation of the world. So we will have to bring about faster changes to overcome the challenges,” PM Modi was further quoted as saying. He said it would have been good if Chief Justice of India J.S. Khehar had continued to hold the position for some more time (beyond his tenure) since the latter took speedy decisions.

Dignitaries present on the occasion also included Mr. Arun Jaitley, Union Minister of Finance; Mr. Ravi Shankar Prasad, Union Minister of Law and Justice; Justice Dalveer Bhandari, President, India International Law Foundation, and Justice Vikramajit Sen, Vice President, India International Law Foundation.

The Madhya Pradesh High Court has held that there is nothing in statute, rule or regulation that prohibits recognition of a bar association in one court or one place, where already a bar association is functioning after recognition by the State Bar Council.

A division bench of Acting Chief Justice Rajendra Menon and Justice HP Singh was recently considering a petition filed by the High Court Advocates Association for its recognition from the Bar Council.

In a response filed by the MP State Bar Council, it was submitted that it is the policy of the Bar Council that two bar associations cannot function in one court. To this, the court said this decision of the State Bar Council of Madhya Pradesh is not based on any statutory provision, rule or regulation having the force of law.

“In fact, an Association and group of persons can always form an association and function in accordance to the right guaranteed to them under Article 19 (1) of the Constitution and grant of recognition by the Bar Council as laid down by the Madras High Court in the case of Madras High Court Association, Chennai Vs. The Secretary, Bar Council of Tamil Nadu and another [AIR 2015 Madras 213] is only for the purpose of the rights and duties created under Advocate Welfare Fund and its regulation,” the bench said.

The high court directed the secretary of State Bar Council to convene a meeting of its appropriate body and take a decision on the application of the petitioner and intimate to all concerned as to what is the decision taken in the matter.

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The Chief Information Commission has directed the government and marriage registration authorities to give widespread publicity through various media that Aadhaar is not mandatory for the purpose of marriage registration scheme.

Disposing of a second appeal, Chief Information Commissioner Prof M Sridhar Acharyulu also directed the authority to make necessary changes for online application for solemnisation of marriage under the Special Marriage Act.

The applicant submitted that the ruling in Writ Petition No. 494/2012: in the case of Justice K. S. Puttaswamy v. Union of India. In the said writ petition, a bench comprising Justice J. Chelameswar and J. Bobde had held in the ad-interim order of September 23, 2013 that no person should suffer for the lack of an Aadhaar card despite the fact that a government authority had issued a circular making it mandatory to submit the Aadhaar card to avail of certain facilities. He also placed on record letter dated 24.3.2015 addressed by SDM-HQ-II to all Deputy Commissioners of Revenue Department of government of NCT of Delhi specifying that strict compliance of orders of Supreme Court in this regard was to be observed and any administrative instruction in violation of the order of Supreme Court will have no validity.

He also submitted that the procedure for registering solemnisation of marriage under the Special Marriage Act makes Aadhaar card a mandatory document for generating receipt for 30 days’ notice, as options for other identity card is not available while applying online.

The commission said in Justice K S Puttaswamy v Union of India, the Supreme Court had observed that no person should suffer for the lack of an Aadhaar card.

The commission also observed that compulsory registration of marriages would help tackle various women’s rights infringements such as child marriage, ensuring a minimum age, marriage without the consent, bigamous unions, besides a woman’s right to live in her marital home and receive maintenance.

“As there is compulsion for registration of marriage; it is necessary that the government should make a convenient and well-manned infrastructure to facilitate the registration of all the marriages by appointing additional marriage officers,” the commission said.

The appeal was disposed of with these recommendations: “In pursuance to the landmark judgment, of the Constitution Bench of the Supreme Court which ruled that Aadhaar card is not necessary for availing government scheme; the public authority and government should give widespread publicity through various media that Aadhaar is not mandatory for the purpose of marriage registration scheme and also make necessary changes for online application for solemnization of marriage under the Special Marriage Act.”

Read the order here.

The Madhya Pradesh High Court granted two weeks time to Madhya Pradesh former Lokayukta and retired Chief Justice of Sikkim High Court Ripusudan Dayal to file reply towards the Madhya Pradesh Government submission that family pension can be fixed only on demise of the pensioner.

The retired Chief Justice of Sikkim High Court Ripusudan Dayal was appointed as the Lokayukta Madhya Pradesh on 23/6/2003.

His term as Lokayukta finished on 23/6/2009.

Former Lokayukta Ripusudan Dayal (75) who is getting the pension for his service rendered on post of the Lokayukta has filed a petition seeking direction to the MP government to fix family pension for his wife Usha Dayal (71).

In support of his claim, the former Lokayukta has cited order of the State government on directions of the Apex Court had fixed the family pension for wife of ex-Up Lokayukta and retired Justice Shyam Sundar Chawla in 24/2/2016.

In preliminary objection the government advocate submitted when the pensioner (the petitioner No.1 ex-Lokayukta Ripusudan Dayal) is alive, no direction can be issued for fixation of the family pension for his wife.

The cause of action for fixation or grant of family pension will arise when the pensioner is no more, the government counsel submitted.

A division bench comprising Acting Chief Justice Rajendra Menon and Justice HP Singh said “we find some force in the aforesaid preliminary objection raised by the Government Advocate to say that this petition is premature”.

The court allowed the prayer of the petitioners counsel seeking some time to respond to the State government’s objection.

Read the order here.

The Supreme Court in Sk. Bhikan vs. Mehamoodabee, has observed that when a High Court is called upon to interpret the documents and examine its effect, it involves questions of law and it is obligatory upon the High Court to decide such questions on merits.

The Bench comprising Justice Abhay Manohar Sapre and Justice R.K. Agrawal remanded a Second appeal to High Court which it had dismissed in limine. The Court said that the appeal did involve the substantial questions of law and, therefore, the High Court should have admitted the appeal by first framing substantial questions of law arising in the case, and then after giving notice to the respondents for the final hearing .

The bench observed that, the instant case the High Court did not examine any document for deciding the ownership issue in relation to the suit property.  “When the Court is called upon to interpret the documents and examine its effect, it involves questions of law. It is, therefore, obligatory upon the High Court to decide such questions on merits. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code. It was, not done however in this case.”

In the facts of the case, the bench observed “The questions as to whether the suit property is self-acquired property of late Sk. Noor Mohammad and, if so, whether respondent No.1 was entitled to inherit the same as his legal representative in accordance with the shares defined in the Mohammedan Law and secondly, whether the suit property is self-acquired property of the appellant (defendant No.1) on the strength of documents filed by him and, if so, whether it has resulted in excluding respondent No.1 to claim any share in such property as an heir of Sk. Noor Mohammad, was required to be decided by framing substantial questions of law in the light of proved documents filed by defendant No.1 because it was his case that the suit property was his self-acquired  property.”

Read the Judgment here.

Annihilation of political opponents has become an order of the day, ignoring the fact that divergent political ideologies are natural in a democratic polity with a multiparty system, said the Court.

“Victims (martyrs, as the parties may call them for political gain) of the spate of political murders are from the rank and file. Those who in the higher echelons masterminding and orchestrating these barbaric activities remain safe and secure. They celebrate martyr's days and shed crocodile tears”, remarked Kerala High Court while disposing a criminal appeal which emanated from a political murder case in Kannur.

“Recurring overt acts by members of certain political parties at some parts of the State, especially in some northern districts, eloquently disseminate a message that human lives are less worthier than a political ideology. Annihilation of political opponents has become an order of the day, ignoring the fact that divergent political ideologies are natural in a democratic polity with a multiparty system. Besides, the proponents of the philosophy forget the reality that an ideology, worth its name, should exist for the upliftment, welfare and wellbeing of mankind. Political killings by using arms and explosives are acts of barbarity. This case unfolds yet another doleful story of a political savagery”.

The Bench comprising of Justice PR Ramachandra Menon and Justice A. Hariprasad set aside a Trial Court judgment which had convicted the accused. The High Court attributed its acquittal to “Unskilled investigation and Faulty prosecution.”

Coming down heavily on the Trial Court Judge, who had found the accused guilty by referring to the case diary statements of the witnesses, which were either deviated from or not proved at the trial, the Court said that such an action on the part of the Sessions Judge is the height of illegality possible in a criminal trial. The Court observed that, instead of resorting to such illegality, the Trial court judge could have invoked the provisions in Section 311 CrPC. to summon any person as a witness at any stage of enquiry, trial or other proceedings under CrPC. though not summoned as a witness. “We express deep anguish for the lack of legalistic and justice oriented approach on the part of a senior judicial officer in the subordinate judiciary”

The case pertains to a brutal murder in Kannur, of a CPI (M) worker allegedly by BJP-RSS members. Justice Hariprasad, who authored the Judgment, starts it by observing that recurring overt acts by members of certain political parties at some parts of the State, especially in some northern districts, eloquently disseminate a message that human lives are less worthy than a political ideology. “Political killings by using arms and explosives are acts of barbarity”, the bench said.

Read the Judgment here.

Recent orders issued by various benches of the National Company Law Tribunal (NCLT) in relations to meetings of shareholders with respect to compromises, arrangements and amalgamations, have left the legal fraternity confounded. Where, the Delhi and Mumbai benches, in a manner that is contrary to the conventional practice, have specifically ordered for a meeting of equity shareholders though dispensation had been prayed for, the Chennai Bench has dispensed with the meeting of shareholders under the new Companies Act, 2013 (New Act), and the Bengaluru Bench has passed orders of dispensation for the proceedings transferred under the Companies Act, 1956 (Old Act).

Background

Compromises, arrangements and amalgamations are covered under S.230 to S.240 of the New Act while the corresponding provisions under the Old Act, are S.391 to S.394. Be it the Old Act or the New Act, both vest discretionary powers on NCLT to call for or dispense with a meeting of the equity shareholders.

Section 230(1) of the New Act provides that (with slight modifications to the language), “where a compromise or arrangement is proposed, between a company and its members or any class of them, the Tribunal may, on the application of the company or the member of the company,… order a meeting of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Tribunal directs.”As is evident from the word underlined and in bold, the operative word is “may”. The construct is the same in S.391(1) of the Old Act.

Prior to the transfer of proceedings to the NCLT and the notification of the corresponding provisions of the New Act, the High Court exercised jurisdiction to hear matters relating to amalgamations and compromises. As per conventional practice, so long as there was consent in the form of affidavits or letters from all members/shareholders, the Court would normally dispense with the member/ shareholder meeting.

On the notification of the corresponding provisions of the New Act coming into force on December 15, 2016, such matters have been transferred to NCLT’s jurisdiction. It is also worth noting that several writ petitions have been filed challenging the transfer of proceedings which are pending till date.

The Current Case

The apparent contradiction has arisen in orders passed last month by NCLT benches in Delhi and Bombay and this month in Chennai and Bangalore, in relation to amalgamations.

Moving away from the traditional practice, NCLT Delhi has called for a meeting of the shareholders while hearing a scheme of amalgamation in the case of JVA Trading Private Limited (the transferor company) and C&S Electric Limited, where it has explicitly stated the following in its order:

“…In relation to the dispensation of the meeting of the equity shareholders of the Transferor Company is concerned, we are not inclined to grant dispensation taking into consideration the provisions of Companies Act 2013 and the rules framed there under both of which expressly do not clothe this Tribunal with the power of dispensation in relation to the meeting of shareholders/members..”

The tribunal also supported this argument by referring to Rule 5 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. Note that the transferor company had had only 4 members and the Tribunal has ordered for the meeting at a specific time and place subject to issue of notice of the meeting and mandated a quorum of 3.

In less than a week after NCLT Delhi had passed this order, NCLT Bombay, in the case of Gauss Networks Private Limited (the transferor company) and Delta Corp Limited, ordered for a meeting of the equity shareholders along with a prior notice with the quorum as prescribed under s.103 of the new Act.  Unfortunately the order does not provide any explanation as to why it is not dispensing with the shareholder meeting.

This month however, NCLT Chennai made a diametrically opposite order. In the case of L&T Ship Building Limited (the transferorcompany) and Marine Infra Structure Development Private Limited, the tribunal noted that the shareholders of the transferor company had “accorded their unconditional consent and approval to the scheme of demerger”. While the NCLT bench provided an explicit dispensation of the creditor meetings, it appears that it did not even find a need to make orders with regard to the meeting of the shareholders given the consent received.

In a similar case, and only a day later, NCLT Bangalore in the matter of Coffee Day Overseas Private Limited (the transferor company) and Coffee Day Enterprises Limited, ordered for a dispensation of the shareholders meeting as the application made by the transferor company already included the  consent received from the two shareholders of the company. The dispensation was given by virtue of this submission. It is to be noted that this order was passed in a transfer proceeding, which, in our interpretation, is and would continue till dealt with in accordance with the Old Act as provided for under the removal of difficulties order.

This divergence points out to an obvious question: Does the NCLT have the power to dispense with the meeting of the shareholders? If it did not, then why have the southern benches of NCLT dispensed off with the same?

In our view, the stand taken by the NCLT, Chennai is prudent commercially, logically and has law on its side. The argument that the NCLT has power to dispense with the meeting of shareholders is strengthened by the word “may” which is continued under the New Act rather than the word “shall” evidencing the fact that the NCLT has power to dispense as per its discretion. (This view was also taken by the Delhi High Court in the case of Mazda Theaters Pvt. Ltd. & anr. vs New bank of India Ltd. & Ors. (1975 ILR Delhi 1)). The National Company Law Tribunal Rules, 2016, also provides at Rule 11 that it has inherent powers and the power to exempt under Rule 14.  In addition, section 465 (2) (c) of the New Act provides that irrespective of the repeal of the Old Act, the practice or procedure, principle or rule of law, exemption……………which was existent prior to the repeal shall not be affected. Hence, the other benches of the NCLT can recognize the practice or rule of law, by exercising their power under the NCLT rules and dispense with meeting of shareholders.

Pawan Jhabakh is an advocate currently practicing in the Madras High Court and Harini Subramani is a Consultant with J. Sagar Associates, Advocates and Solicitors. The views expressed here are their own.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

Vide a notice issued on Thursday, Bar Council of Delhi has directed Advocates to submit copies of the requisite Educational Certificates to their office, on or before 6^th March, 2017.

This is in furtherance of the verification drive commenced by the Council, in terms of Certificate and Place of Practice (Verification) Rules, 2015. These Rules had, however, not laid down any stipulation for the members to submit, along with their renewal application forms, copies of their educational qualification certificates.

Such mandate had been given by way of a subsequent clarification issued by the BCI, which had then requested the State Bar Councils to furnish copies of Class X Certificate for date of birth, copy of the Graduation Degree and copy of the LL.B. Degree. By this time, however, several Advocates had already submitted their forms, without annexing such certificates.

The notice says that despite several reminders, around 18,000 Advocates are yet to submit their Graduation and LL.B. Certificates.

The Notice further states that the Bar Council of Delhi is also in the process of preparing another list of Advocates, who have not submitted the following documents:

(a) The certified copies of at least 5 Vakalatnamas or any other document/cause list establishing that the advocate has been in practice for the last 5 years.

(b) If the Advocate is attached with/registered with some law or solicitor firm, a certificate to that effect from the authorized officer of concerned firm showing details as to for what period Candidate/ Advocate has served the firm and nature of his details.

(c) If the lawyer is a conveyancing lawyer, 5 such documents of the last 3 years to support his claim that he/she is in conveyancing practice lawyer.

You may read: Certificate of Practice Rules, 2015 – An Analysis by Nirmaleswar Thirunavukarasu

Read the notice here.

Former Kerala DGP Dr TP Senkumar has moved the Supreme Court against the Kerala High Court judgment which dismissed his appeal against the Administrative Tribunal’s order upholding his removal from the post of state police chief by the LDF government in 2016.

When the LDF government came in power in Kerala, Senkumar was replaced by Loknath Behra as the DGP.

Senkumar was appointed chairman and managing director of the Kerala Police Housing and Construction Corporation on state deputation basis.

Though he challenged the order and the constitutional validity of Section 97(2)(e) of the Kerala Police Act, the high court dismissed his plea by an order dated January 27 last.

In the petition, Senkumar submitted that the post of the 'state police chief' is having fixity of minimum tenure of 'two years' as per Section 97(1) of the Kerala Police Act, 2011, and in the light of the ruling rendered by the apex court in Prakash Singh Singh case.

He alleged that he was displaced immediately after declaration of the result in the general election to the assembly, which was won over by the LDF and hence, as a measure of political vendetta, involving malafides.

“… the reasons for the transfer were formulated after the decision of transfer is a clear indicator of malafide political intention of the decision. The political motive for wrecking havoc to the petitioner's career stems from his investigation into TP Chandrasekharan murder, the Shukoor murder - both were political murders where the accused were CPI(M) workers,” he alleged.

According to the petitioner, his transfer even affected the state police, which can be seen from the escalation of political murders in Kerala from June 1, 2016, afterwards.

“In Kannur district alone during the entire year, only one political murder took place. But during the last 8 months, more than 8 or 9 political murders have already taken place there,” he said.

He also submitted that no factual circumstance was prevailing to have invoked the power under Section 97(2)(e) of the Kerala Police Act in his case.

The two incidents cited against the petitioner i.e., 'Puttingal temple tragedy' occurred on April 9-10, 2016, and 'Perumbavoor xxxx murder case' occurred on April 28, 2016, were properly probed by the police and there was no lapse on the part of the petitioner in this regard, he claimed.

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