1. The enactment of Real Estate (Regulation and Development) Act, 2016 brought a sea change in the manner the real estate sector was being regulated. It brought along with it a hope in the eyes of the allottees to fulfil their dreams to get their abode for which they were waiting for long. Though it remains a fact that the manner in which the act has been implemented, it is disputable as to whether the Act has been able to achieve the object and to what extent it has been able to rectify the mischief for curing which it was enacted. One of the aspects which has remained subject matter of discussion, debate and dispute especially amongst the builders as to whether they are exempted from the clutches of requirement of registration under the Act and whether their projects were ongoing on the date when the Act came into force. Since the Act does not provide definition of “ongoing project” therefore, there remains confusion as to whether such projects for which licences were granted but no further implementation has been made are also covered and this prevailing confusion has often been a subject matter of dispute because in recent past it has been seen that the authorities has burdened the builders with penalties and costs for late registration of the project after the commencement of the Act. The instant article aims to clarify the air of confusion around the interpretation and scope of the term “ongoing project”. The terms “ongoing project” is being discussed with reference to the Haryana real Estate (Regulation and Development) Rules, 2017.

2. In order to appreciate as to how this concept of “ongoing project” evolved, it is necessary to first dive into the legislative history and the object of the Act of 2016. A perusal of the statement of objects and reasons of the act shows that the act has been enacted to establish the real estate regulatory authority for regulation and promotion of the real estate sector and to ensure sale of plot apartment or building as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector. The idea of the legislation revolves around effective consumer protection, uniformity and standardization of business practices and transactions in the real estate sector in order to ensure greater accountability towards consumers to overcome frauds and delays and also the higher transaction costs. At the same time, it also intended to balance the interests of consumers and promoters by imposing certain duties and responsibilities on both.

3. There could not have been an effective way than to introduce the concept of “registration of real estate project” for imparting transparency in the real estate sector and ensuring its effective regulation. Accordingly, under chapter II of the Act of 2016 registration of real estate projects was made mandatory and to make the statute apply with rigours, sub section (1) of Section 3 provided that without registering the real estate project with a real estate regulatory authority established under the act, no promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner a plot, apartment or building, as the case may be in any real estate project. While making registration of “real estate project” mandatory under sub section (1) of section 3, the legislature by virtue of proviso to section 3(1) mandated that such projects which are “ongoing” on date of commencement of the Act and more specifically the projects to which the completion certificate has not been issued, shall have to make an application to the authority for registration of the project within 3 months from the date of commencement of the Act of 2016. Section 3 of the Act has been reproduced herein under for ready reference: –

`….3. Prior registration of real estate project with Real Estate Regulatory Authority –

(1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act.

Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act.

Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects form that stage of registration.

(2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required –

(a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of an phases;

Provided that if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be inclusive of all phases, for exemption from registration under this Act.

(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act.

(c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.

4. From perusal of the aforesaid provision and the statement of object and reasons of the Act, it manifests that the legislative intent is to make an Act applicable not only to the projects which were yet to commence after the Act became operational but also to bring under its fold “ongoing” projects and to protect from its inception the inter se rights of the stage holders, including allottees/home buyers, promoters and real estate agents while imposing certain duties and responsibilities on each of them. Therefore, it becomes equally important to give such a meaning to the “ongoing” project, which would take forward the legislative intent.

5. It is worthwhile to refer to the legal principles settled by the Apex Court for interpreting the definition clause so as to understand the true import of the term. The most popular way of interpreting any clause or for that matter a definition clause is held to be the “contextual interpretation”. Interpretation must depend upon the text and the context. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. If the statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than the statute is looked at without glasses provided by the context. The requirement is to look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire act. No part of a statute or word of a statute can be construed in isolation. (as observed in State of Maharashtra v. Reliance Industries Ltd., (2017) 10 SCC 713).

6. For understanding scheme of the Act of 2016 in order to ascertain the scope and meaning of “ongoing projects”, it is relevant to refer to the definitions of “completion certificate”, “development”, “real estate project”, “sanctioned plan” and section 4 of the Act of 2016 read with Rule 3 and 4 of Rules of 2017. This would further help us to understand as to the “regulatory function” of the authority which the legislature had sought to achieve with enactment of Act of 2016. At first reference is made to the definition of real estate project as provided in section 2 (zn) of Act of 2016, same is as follows:-

(zn) “real estate project” means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartments, as the case may be, for the purpose of selling all or some of the said apartments, or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto.

7. A real estate project is defined to mean “development” of building or building consisting of apartments or conversion of existing buildings into apartments or development of land into plots for the purpose of selling including common areas, development works, easement rights etc. The word “development” as used in the aforesaid definition is defined in section 2(s) to mean, `carrying out the development of immovable property, engineering or other operations in, on, over or under the land or the making of any material change in any immovable property or land and includes re-development.’ As a sequel of above, the word “development” used in relation to “real estate project” connotes that “real estate project” involves the process of making “material change in any immovable property/land” in the form of apartments, plots or buildings etc., for the purpose of selling. Thus, the concept of development i.e., making change in land/immovable property is very much ingrained as far as phrase “real estate project” as used in the Act of 2016 is concerned. It would thus, be no gainsaying that definition of real estate project itself takes care of “ongoing projects” i.e., including within its ambit the projects which are at any stage of “development” and “not yet completed” and no completion certificate has yet been issued.

8. To further understand the relevance of the definition of “real estate project“, reference is made to the sub section (2) of section 3 which grants exemption to certain real estate project from the requirement of registration which includes such projects wherein the promoter has received a “completion certificate” prior to the commencement of the Act. The “completion certificate” is defined in section 2(q) of the Act of 2016 to mean, “completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specification as approved by the competent authority under the local laws.” Thus, any project which is short of completion certificate i.e., not yet developed in accordance with the sanctioned plan and is in the “development” stage can be called as “ongoing” within the scope of Act of 2016.

9. The words “sanctioned plan” as also used in definition of “completion certificate” is defined in the Act in section 2(zq), as per which “sanctioned plan means the site plan, building plan, service plan, parking and circulation plan, landscape plan, layout plan, zoning plan and such other plan and includes structural designs, if applicable, permissions such as environment permission and such other permissions, which are approved by the competent authority prior to start of a real estate project“. The legislature has specifically used the words “prior to start of a real estate project” while defining the meaning of “sanctioned plan“. The words “prior to start” assumes all the more significance because as seen from the definition of “real estate project” it connotes “development” i.e., process of making material change in the immovable property or land for converting into apartments, buildings, plots etc., and the stage of sanctioned plan which includes site plan, building plan, service plan, circulation plan etc., all precedes the “real estate project“. The legislature by providing that stage of getting approvals is “prior to start of real estate project” has excluded it from the concept of “development” as ingrained in section 2(s) and 2(zn) which defines “real estate project“. Therefore, in the considered opinion of undersigned, a project cannot be called “real estate project” unless and until it has been conceptualized, for which building plans, zoning plans, layout plans etc. are the basics. This stage necessarily precedes the development of a “real estate project” i.e., development of land into buildings/apartments/flats/plots etc.

10. Further reference is made to section 4 of the Act which provides for the “application for registration of real estate projects“. As per section 4(1) of Act of 2016 every promoter is bound to make an application to the Authority for registration of “real estate project“. The power to prescribe the manner and form along with fees, is bestowed on the State Government, however, at same time sub section (2) of section 4 makes it mandatory for the promoter to enclose certain documents which includes, an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project, sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority, plan of development works, number of apartments. Section 4 in its entirety is reproduced herein below for the ready reference:-

4. Application for registration of real estate projects –

(1) Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be (prescribed)

(2) The prompter shall enclose the following documents along with the application referred to in sub-section (1), namely –

(a) a brief details of his enterprise including its name, registered address, type of enterprise (proprietorship), societies, partnership, companies, competent authority), and the particulars of registration, and the names and photographs of the promoter;

(b) a brief detail of the projects launched by him, in the past give years, whether already completed or being developed, as the case may be, including the current status of the said projects, any delay in its completion, details of cases pending, details of type of land and payments pending;

(c) an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases;

(d) the sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority;

(e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including firefighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy.

(f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project;

(g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees;

(h) the number, type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas appurtenant with the apartment, if any;

(i) the number and area of garage for sale in the project;

(j) the names and addresses of his real estate agents, if any, for the proposed project;

(k) the names and addresses of the contractions, architect, structural engineer, if any and other persons concerned with the development of the proposed project;

(l) a declaration, supported by an affidavit, which shall be signed by the promoter or any person authorized by the promoter, stating –

(A) that he has a legal title to the land now which the development is proposed along with legally valid documents with authentication of such title, if such land is owned by another person;

(B) that the land is free from all encumbrances, or as the case may be details of the encumbrances on such land including any rights, title, interest or name of any party in or over such land along with details;

(C) the time period within which he undertakes to complete the project or phase thereof, as the case may be;

(D) that seventy per cent of the amounts realized for the real estate project form the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of of construction and the land cost and shall be used only for that purpose.

Provided that the promoter shall withdrawn the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project.

Provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer, an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project.

Provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice, and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilized for that project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project.

(E) that he shall take all the pending approvals on time, from the competent authorities.

(F) that he has furnished such other documents, as may be prescribed by the rules or regulations made under this Act; and

(m) such other information and documents as may be prescribed.

(3) The authority shall operationalise a web based online system for submitting applications for registration of project within a period of one year form the date of its establishment.

11. Once, Section 4 of Act of 2016 stipulates that the relevant documents which shall mandatorily be enclosed with the application for registration includes sanctioned plan, layout plan, number of apartments etc., therefore, in no sense can the stage of getting approvals/sanctioning of building plans/layout plans etc, be included within the ambit of definition of “development” used in context of “real estate project”. These aspects precede the initiation of real estate project because it connotes the conceptualization of the idea of project, i.e., how the project would be planned, how many towers are to be constructed, how many plots are to be carved out, how many flats are planned, how the development works are to be executed, what size of plots/flats are to be planned. Unless and until the basic preparation in the aforesaid manner is done, no project can be developed. If the intention of legislature would have been to mandate the registration even before the plans are sanctioned and necessary approvals as enumerated in section 4 are taken, the Act would have been couched in such manner but, perusal of relevant provisions, as discussed above, goes on to show that the act presupposes that the promoter will take all necessary permissions first, will get the plans sanctioned and then would apply for registration. Rightly so, because if these details are not available, what would the authority regulate? A project which is not even existing on the paper. This could never be the intention of legislature. As the saying goes, “necessity is mother of invention”, accordingly, the need to have a regulatory authority for real estate sector was felt, despite there were state enactments giving different authorities power to ensure compliance of sanctions/permissions granted by them to developer/promoter. Due to scattered power amongst numerous departments, effective regulation was almost negligible which resulted into the miseries of allottees as developers flouted the conditions often and ultimately, we saw a downfall in real estate sector. Thus, to promote the blooming industry, it was necessary to have a watchdog, ensuring that real estate sector promoted, regulated by protecting interest of consumers. Therefore, the Act of 2016 provided for establishment of an authority performing twin functions i.e., of regulation of real estate sector and of adjudication of disputes.

12. For regulation and promotion of real estate sector, “registration of real estate project” with the authority has been given utmost importance, so much so that section 3 of Act of 2016, as also discussed above, created a bar on the promoter to advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment of building, in a real estate project or part of it, without getting the project registered with the authority. With this, the Act ensured not only the protection of interest of allottees, but also ensured “effective regulation” of real estate sector by intending to root out the possibility of exploitation of allottees and ensuring that the promoter is not flouting the permissions and the promises made to the allottees.

13. A very pertinent question arises at this stage is how “registration” is one of the mechanisms to ensure “regulation of real estate sector”. The answer lies in section 4 of the Act of 2016 as per which the promoter is to furnish details of each and every aspect of the project i.e., detail of promoter, earlier project launched and their status, copies of approvals, sanctioned plan, layout plan, specification of project, plan of development works, location details of project, proforma of allotment letter, number, type and carpet area of apartment, name and address of real estate agents and declaration as regards the title of land, time period within which the project would be completed, details of bank account. It is only after these details are available with the authority, can the regulation function be performed, because in their absence, the authority would not be in a position to even ascertain as to whether the promoter is compliant with all the approvals, how many prospective allottees would be there, how many units are being proposed for sale, how many have already been sold and accordingly, in absence of this information even the allottees would not be aware about the promoter as it is necessary for the authority to publish all such details on the website. Without these details, the authority can neither perform its functions for promotion of real estate sector as envisaged in section 32 of Act of 2016 nor can it perform the functions as envisaged under section 34 of Act of 2016. Therefore, even though from reading of sub section (1) of section 3 it appears that requirement of registration is only before advertising, selling, marketing etc., but section 4 makes it evident that the registration of real estate project before development starts i.e., “at the stage of proposed development”, which is only possible when the promoter has reached a stage where it is ready to undertake development and when this is read with word “ongoing”, it further becomes clear that legislature intended to include the projects where the promoter is developing or is in a position to develop real estate project as provided in section 4 within ambit of “ongoing” as on 01.05.2017.

14. A further tinge of the necessity of documents to be enclosed along with application for registration is provided in section 7 of Act of 2016 which postulates about revocation of registration by the authority. One of the grounds provided for revocation of registration is that “the promoter violates any of the terms and conditions of the approval given by the competent authority“. This supports the interpretation that no regulation is possible without the documents and information enclosed, as provided in section 4 of the 2016 Act. Thus, authority as envisaged by the legislature in scheme of the Act, is to carry out a herculean task of regulation of entire real estate sector, and not to act merely as a registrar office of only maintaining the records of registration. This is possible only if the project is registered after the authority is satisfied that promoter has necessary permissions/approvals to carry out the development of real estate project. The act of registration cannot be mechanical rather it is necessary for ensuring transparency in real estate sector and is one of the major steps towards achieving goal aimed by the Act because by granting registration, the authority has to overlook that promoter is compliant with the permissions granted to it by the competent authority for developing the project. In case, it is non-compliant, authority is empowered to revoke registration which would rightly impact the developer/promoter as he would not in a position to sell any part of the project in view of bar under section 3 of Act of 2016. To further give teeth to section 3, legislature added section 59 for punishing any act which is contravention to section 3 of Act of 2016. The act envisages a complete and full proof mechanism, therefore, at first instance it is imperative for the authority to ensure that it has entire details of the project which is possible only and only if the promoter is able to fulfil all necessary conditions provided in section 4 which are self explanatory about the aspect that “real estate project” has been conceptualised and promoter has made sufficient alteration in his position by taking various approvals to start developing a real estate project. If that is so, a project which is far from being “developed” and is still the stage of “conceptualisation” cannot be termed as “ongoing” because the act intends to regulate “development” of project and not the “conceptualisation”.

15. As far as scheme of the Act of 2016 is concerned, it is clear that grant of all necessary permissions/approvals etc. precede the start of real estate project as these permissions are important to put a promoter in a position to start “developing” the project. Accordingly, a promoter who was not having all necessary permissions so as to enable him to develop a real estate project as on 01.05.2017, cannot be included within the scope of “ongoing” for the purpose of registration within three months from the date of commencement of the Act. It is being made clear that assessment is being made only for the purpose of assessing whether a project would be ongoing on 01.05.2017, because in any eventuality any “real estate project” is required to be registered at the stage of “proposed development” as envisaged in section 4 and also discussed herein above.

16. In view of the discussion made herein above, if we now read the definition of “ongoing projects” as provided in Rule 2 (o) of Haryana Real Estate (Regulation and Development) Rules, it would become clear that taking mere licence before 01.05.2017 is not the sole criterion for a project to be termed as “ongoing” project, it has to be in a stage where promoter is in a position to develop the project i.e. has taken all permissions required prior to start of real estate project or has started developing it already. The grant of licence before 01.05.2017 is though the initial point but “development works not yet completed” is determining the stage as envisaged within the definition of “real estate project” in section 2 (zn) which involves “development” and takes care of the mandate of section 4 of Act which requires registration for the “proposed development” as well, but at the same time excludes the stage of getting permissions/sanctioned plan etc., which as per section 2 (zq) are required “prior to start of real estate project”. Therefore, an “ongoing project” is one wherein as on 01.05.2017, the promoter was in a position to start the development of real estate project after taking all permissions/approvals/sanctioned plans along with the projects which are already in development stage.A “real estate project” connotes “development” and it would be possible only when it is conceptualised and the promoter is in a position to put that concept/idea to life.

17. Therefore, the legal position as discussed above can be summarised in the manner as follows:-

(i) “real estate project” connotes “development” as defined in section 2(s) i.e., conversion of the immovable property/land into apartments/flats/plots etc. for purpose of selling it does not include within its ambit a mere “conceptualisation” but a stage at which the promoter has conceptualised and taken necessary approvals for developing the project. Therefore, concept of `ongoing’ stems out from the definition of real estate project connoting development as against mere conceptualization.

(ii) The requirement of registration kicks in, the moment when the promoter is ready to start developing a real estate project because section 4 also refers to a project which is “proposed to be developed”. When definition of “real estate project” is read along with the word “proposed” as used in section 4, it definitely implies that “proposed real estate project” which has come ahead of the stage of conceptualization is covered within the ambit of registration. This garners support from definition of “sanctioned plan” provided in section 2(s) which itself states that the approvals are required “prior to start of real estate project” and from the requirements given in section 4(2) which the promoter is required to fulfil in order to get the project registered. Therefore, as a logical corollary, all such projects wherein a promoter had obtained all relevant permissions and was in a position to initiate development along with such project which were already at development stage and have not been granted a completion certificate, are included within the ambit of “ongoing” project as used in section 3 proviso.

(iii) Definition of “ongoing project” as given in rule 2 (o) of Rules of 2017 necesitates twin requirement i.e., licence was taken before 01.05.2017 and development works are yet to be completed. The words “development works are yet to be completed” are cautiously used to include within its ambit such projects wherein either the promoter was in a position to start developing real estate project or has already started the development, but such development is not complete. Thus, it takes care of scheme of act as discussed in point (ii) above i.e., a project would be categorised as “ongoing” on the date of commencement of the Act of 2016 when a promoter is ready to start a real estate project as is contemplated from the scheme of Act of 2016 or has already started development and has not received a completion certificate.

Therefore, the ultimate test to decide whether a project would be ongoing as on 01.05.2017 is to answer a simple question whether a promoter was in a position on 01.05.2017 to start developing a project and to fulfil the requirements of registration given in section 4 of Act of 2016 read with rule 3 and 4 of Rules 2017 or is already in the stage of development but has not received completion certificate. If yes, it would be “ongoing” as on 01.05.2017.

]]> https://lawfinderblog.com/ongoing-projects-extent-and-scope-under-real-estate-regulation-and-development-act-2016/feed/ 0 https://lawfinderblog.com/scope-and-extent-of-review-jurisdiction-of-the-court/?utm_source=rss&utm_medium=rss&utm_campaign=scope-and-extent-of-review-jurisdiction-of-the-court https://lawfinderblog.com/scope-and-extent-of-review-jurisdiction-of-the-court/#respond Wed, 20 Sep 2023 07:09:47 +0000 https://lawfinderblog.com/?p=4337 The dictionary meaning of the word review is “the act of looking...]]>

The dictionary meaning of the word review is “the act of looking, offer something again with a view to correction or improvement”. As explained by the Apex Court in S. Nagraj and others v. State of Karnataka and another 1993 Supp (4) SCC 595, review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. The purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident without any blame.

2. The power of a Civil Court to review its judgment/decision is traceable in Section 114 CPC and the grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC, which imposes definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits because it would be the province of a Court of appeal. Order 47 Rule 1 CPC is reproduced as under:-

“REVIEW : 1. Application For Review Of Judgment.

(1) Any person considering himself aggrieved –

(a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review or judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation : The fact that the decision on question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.

3. The first principle for exercising power of review is that it cannot be exercised as an inherent power. It must either be conferred by the law either specifically or by necessary implication. As held in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, the power of review is very much endowed upon High Court under Article 226 of the Constitution of India, being a court of plenary jurisdiction, in order to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Such power of review is to be exercised within the definitive limits, for which the grounds provided under Order 47 Rule 1 CPC provides sufficient guidance. The object and ambit of power of review has been explained by the Supreme court in Shri Ram Sahu (dead) through LRs and others v. Vinod Kumar Rawat and others 2020(12) Scale 415, in following terms:-

`…9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of section 114 CPC, it appears that the said substantive power of review under section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47, Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47, Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review….’

4. The parameters provided in Order 47 Rule 1 CPC are three-fold, i.e., discovery and new and important evidence or matter, which after exercising due diligence was not in the knowledge of the person seeking review; mistake or error apparent on the face of record and any other ground which analogous to the aforesaid two grounds. In order to appreciate the workability, scope and extent of these grounds, it is imperative for us to delineate the principles as settled by the courts from time to time.

I. Discovery of new and important matter or evidence

5. When review is sought on the ground that some new evidence or matter has been discovered, the onus is on the party seeking review to show that such matter or evidence is relevant and it should be of such character that if same had been produced, it might have altered the judgment. Mere discovery of new evidence or new matter alone is not sufficient to seek review, it must necessarily of such importance having potential to change the view taken by the court at the first instance. The further controlling circumstance for seeking review on this ground is that the party seeking review has to show that such additional matter or evidence was not within its knowledge and even after due diligence same could not have been produced before the court earlier. The court before entertaining review on the ground of discovery of new matter or evidence is required to record its satisfaction about the three aspects, which can also be called as “triple test” i.e., (i) new matter/evidence discovered is of such nature which could change the judgment (ii) such new matter/evidence was not within the knowledge of the party seeking review (iii) same could not be produced before court even after due diligence. When any of the conditions of the test, as laid down above is not fulfilled, “discovery of new matter/evidence” ipso facto would not be sufficient ground for the court to interfere with the finality of the judgment.

6. This was the view expressed by the Hon’ble Supreme Court of India in the case of “The State of West Bengal and others v. Kamal Sengupta and others 2008 (8) SCC 612“, wherein the apex court had laid down the conditions required for seeking review of the judgment on the ground of “discovery of new matter or evidence”. The relevant para of the judgment reads as under:-

`…..14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier….’

II. Mistake or Error apparent on the face of record

7. A mere error whether factual or legal is not sufficient to invoke review jurisdiction because as has also been observed the Apex Court in Asharfi Devi (D) Thr LRs v. State of U.P. and others 2019(5) SCC 86, in order to attract the provisions of Order 47, Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. As the phrase suggests, an error or mistake to be a ground to seek review must be such, which may strike one on a mere looking at the record and would not require a long-drawn process of reasoning to reach the conclusion that there has been a mistake or error. A mistake which is discovered after a process of reasoning would not qualify to be “an error apparent”. The following observations explaining the meaning of “error apparent on the face of record” in “Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 are worth noting: –

“An error which has to be established by a longdrawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”

8. Only a “patent error” and not a “mere wrong decision” can be said to be an error apparent on the face of record. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 Supreme Court 233, the court held that error apparent must be something more than a mere error and must be one which is manifest on the face of the record. Similar observations were made by the Apex Court in the case of Parison Devi v. Sumitri Devi (1997) 8 SCC 715 holding that an error which has to be detected by reasoning can hardly be called as an error apparent on the face of record. It was observed as under:-

“9. Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not selfevident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.”

9. Thus, a mistake or error which the party pleads for seeking review must be one which is self-evident, if a matter is required to be first reheard and then corrected, it would be an appeal under the guise of review. The courts have time and again emphasized on the narrow difference which exists between an appeal and a review. The courts exercising review jurisdiction have been time and again cautioned to not to walk on the path of reassessment of the judgment while hearing review application. While doing so, the courts have evolved “multiple facets” explaining scope and extent of “mistake or error apparent on the face of record” as a ground for seeking review.

10. Merely because a document which was forming part of the record was not considered at the time of deciding the case cannot be categorized as a mistake or error apparent on the face of record as was held by the Hon’ble Supreme Court of India in the Aribam Tuleshwar Sharmma v. Aribam Pishak Sharma and others (1974) 4 SCC 389. Such ground is the province of a court of appeal as under appellate jurisdiction, the court may correct all manner of errors committed by the subordinate court, but the review court can only review a mistake/error which is apparent on the face of record. An erroneous decision on merits cannot be a ground of review. The observations of the court reads as under:-

`….The Judicial Commissioner gave two reasons for reviewing his predecessor’s order. The first was that his predecessor had overlooked two important documents Exs. A-1 and A-3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab [AIR 1963 SC 1909] there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.

In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceedings under Article 226. Again that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs…’

11. After quoting the passage from Aribam Tuleshwar Sharma (Supra) with approval, the apex court once again reiterated in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC. The ratio laid down in the case of Parsion Devi (supra), Meera Bhanja (supra) and Aribam Tuleshwar Sharma (supra) was reiterated by the Hon’ble Supreme Court in Sasi (D) Through Lrs. v. Aravindakshan Nair and others AIR 2017 SC 1432, and following observations were made: –

`…6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.

7. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 Supreme Court 1372 the Court while dealing with the scope of review had opined:

“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an `error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an `error apparent on the face of the record’, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by `error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.”

8. In Parsion Devi v. Sumitri Devi, 1997(4) RCR (Civil) 458 : (1997) 8 SCC 715, the Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389, held thus:-

“Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise””

12. It is further settled that the power of review is to be exercised for “correction of mistake” and not for “substitution of view”. In Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596, the apex court observed that a review cannot be claimed for fresh hearing of the matter or for correction of an erroneous view taken on earlier point of time. The error of law or fact of which correction is being sought must “stare in the face” without needing an elaborate argument for establishing same. The observations of the court reads as under:-

“….30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression ‘any other sufficient reason’ used in Order 47, Rule 1 means a reason sufficiently analogous to those specified in the Rule…”

13. In the case of Lily Thomas v. Union of India (2000) 6 SCC 224, apex court observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Only because there was a possibility of two views and the court had chosen to adopt one, can never be ground for review. A review cannot be an appeal in disguise. The observations of the court in this regard are as under: –

`….56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. …’

14. The re-appreciation of evidence for finding the mistake or error in the judgment is beyond the scope and purview of the review jurisdiction. If in any case the court is required to reappreciate the evidence in order to find out the error/mistake in the judgment, it would amount to re-hearing of case which is domain of an appellate court. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. The Hon’ble Supreme Court in the case of Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., (2005)6 SCC 651, clarifying this aspect, held as under:-

“10. …….In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.”

15. The order of the High court reviewing its judgment was held to be bad by the Apex court in Rajender Kumar v. Rambhai AIR 2003 SC 2095 on the ground that the High Court entered upon the exercise of reappreciation of evidence without first satisfying itself that order suffers from such an error which could lead to failure of justice. Unless and until, such an error exists, order cannot be reviewed. The relevant observations of the court are as follows:-

`…5. On a perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of reappreciating the evidence and on such reappreciation of evidence redetermined the compensation by reducing the amount to the extent noted earlier.

6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.

7. Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction.

16. The Hon’ble Supreme Court in the case of Inderchand Jain (D) through L.Rs v. Motilal (D) through L.Rs (2009) 14 SCC 663, reiterated the aforesaid view and held that re-appreciation of evidence is beyond the review jurisdiction.

17. A repetition of old and concluded argument, which was not accepted by the court at first instance, is not enough to repone the concluded adjudications. If once an argument does not get imprimatur of the court and the case was decided, the party cannot seek a rehearing of the original matter. The Apex Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501 by referring to a review petition seeking review on same relief and grounds as pleaded in original petition, observed that such “second innings” is impressible under guise of review and held as under :

“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of “second innings” which is impermissible and unwarranted and cannot be granted.“

18. Even a failure to argue a point at the time of hearing of the matter by the court, is also not a ground for seeking review as it would be a case where the existing material was overlooked by counsel and not a case of excusable misfortune or mistake. This was so observed by a Division Bench of the Orissa High Court in the case of Union of India v. Sudhir Kumar Ray and Ors, AIR 1975 Ori. 64, holding as follows:-

“Failure to argue a point is not an envisagable ground for review under Order 47 Rule 1 CPC, according to which in only three cases mere review is permitted. Those cases are where new material has been overlooked by excusable misfortune, mistake or there is an error apparent on the face of record and where there is ‘any other sufficient reason’. The present case is not covered by the first two classes of cases. No new material has been overlooked by excusable misfortune or mistake; it is a case of an existing material being overlooked by the counsel and not a case of excusable misfortune nor a mistake. There is also no error apparent on the face of record.”

19. A perusal of the aforesaid precedents leaves no doubt that the Courts have repeatedly held that the jurisdiction and scope of review is not that of an appeal. It is a reluctant resort only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. The path on which the review court has to walk upon is indeed very narrow and guarded by the definitive limits. It has to make sure that while deciding review, it shall not transgress the limits and enter province of an appellate court. A petition seeking review cannot be entertained at drop of hat. “Any” or “every” mistake is not sufficient for invoking review jurisdiction. Mistake has to be such which is apparent and manifest on the face of record and if not corrected, would result into miscarriage of justice. There is no definitive test laid down to assess as to which mistake will be an error apparent on the face of record. From perusal of the judicial precedents as discussed above, it transpires that a mistake to be apparent shall be “self-evident” and “stare in the face” of it. If a mistake has to be discovered after examining the record and requires an argument to establish it, such mistake or error would be not be “apparent on the face of record” and would cease to qualify as a ground for seeking review. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it is thus, left to be determined judicially on the facts of each case.

20. The observations of Apex court in Delhi Administration v. Gurdip Singh Uban and others AIR 2000 SC 3737 are worth noting here wherein an argument was raised before the court that in every case where there is “injustice”, the Court should not feel shackled by rules of procedure nor constrained by the limited scope of a review application. The argument was rejected by the court after making reference to essay authored by Justice Cardozo, which in fact summarizes the boundaries within which a court has to act while balancing the rights of parties within the four corners of law and to not sway away under the influence of plea of “justice” and “injustice”. The observations of the court are as follows:-

23. The words “justice” and “injustice”, in our view, are sometimes loosely used and have different meanings to different persons particularly to those arrayed on opposite sides. “One man’s justice is another’s injustice” [Ralph Waldo Emerson : Essays (1803-82), First Series, 1841, “Circles”]. Justice Cardozo said:”The web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seem to be simple, are found, when analysed, to be a complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded.” (Selected Writings of Cardozo, pp. 223-24, Falcon Publications, 1947.)

24. While the man who succeeds may think justice is on his side, the man who loses is prone to think that injustice has been done to him. Most litigants who have not won, presume that injustice has been unreasonably inflicted upon them. Their approach is subjective and personalised. Therefore, this appeal by Shri Shanti Bhushan for “justice” can take us nowhere. The State and DDA which are on the other side are impersonal bodies and if they are exercising statutory powers for public good and acquiring land for public purposes, the Court has to balance the rights of parties and this has to be done within the four corners of the law. We are not lay courts meting out justice according to our whims and fancies but are governed by law as well as by binding precedent.

III. Any other sufficient reason

21. The third ground enumerated under Order 47 Rule 1 CPC for seeking review is “any other sufficient reason”. There is no definition provided for the term “any other sufficient reason”. It is a general ground provided along with special grounds i.e., “discovery of new matter or evidence” and “mistake or error apparent of the face of record”. For interpreting the general words, doctrine of ejusdem generis also known as Lord Tenterden’s Rule, comes to the rescue. As per the said doctrine, when a list of specific words are being followed by the general words, the general words are interpreted in a way so as to restrict them to include the items or things which will be of same type as those of the specific words. The underlying principle behind the doctrine is that the color and context of the general words are to be derived from their context. Likewise, the expression “any other sufficient reason” when interpreted in view of aforesaid principle would mean such “sufficient reason” which is analogous to those specified immediately to it in the provision Order 47 Rule 1 CPC. In Chhajju Ram v. Neki and Ors, AIR 1922 PC 112, it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground.

22. In Moran Mar Basselios Chatholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526, the Hon’ble Supreme Court of India, has interpreted words “any other sufficient reason” in the manner as follows:-

`…..It has been held by the Judicial Committee that the words “any other sufficient reason” must mean ” a reason sufficient on grounds, at least analogous to those specified in the rule”. See — Chhajju Ram v. Neki’, AIR 1922 Privy Council 112. This conclusion was reiterated by the Judicial Committee in —‘Bisheshwar Pratap Sahi v. Parath Nath’, AIR 1934 Privy Council 213 and was adopted by our Federal Court in — ‘Heri Shankar v. Anath Nath’, AIR 1949 Privy Council 106 at pp. 110, 111. Learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case comes within the ground of “”mistake or error apparent on the face of the record” or some ground analogous thereto..’

23. The same view was reiterated in Debi Prasad and Ors. v. Khelawan and Ors., AIR 1957 All. 67; and Mohammad Hasan Khan v. Ahmad Hafis Ahmad Ali Khan and Anr., AIR 1957 Nag. 97 and thereafter in Lily Thomas (supra) wherein the court observed as under:-

`….58. Otherwise also no ground as envisaged under Order 40 of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, (1995) 3 SCC 635 It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision…’

24. The principles as regards the scope and extent of review jurisdiction of the court, as also discussed above, have been summarized by the Hon’ble Supreme Court in Kamlesh Verma v. Mayawati and others 2013 (8) SCC 320 and were reiterated by the Hon’ble Punjab and Haryana High Court as well, in the case of Columbia Holdings Pvt Ltd and others v. State of Haryana and others RA-CW-357 of 2015. The principles set out in various judicial precedents can be summarized as follows:-

A. Exercise of review jurisdiction is called for only in cases where one of the following grounds exists:

(i) When there is discovery of new and important matter or evidence, subject to the fulfillment of the following conditions:-

a. new matter/evidence discovered is of such nature which could change the judgment

b. such new matter/evidence was not within the knowledge of the party seeking review

c. same could not be produced before court even after due diligence

(ii) When mistake or error apparent on the face of the record.

(iii) When there exists “any other sufficient reason”, which is interpreted as analogous to the aforesaid two grounds.

B. The review jurisdiction is not exercisable on following grounds:-

(i) Only a “patent error” and not a “mere wrong decision” can be said to be an error apparent on the face of record.

(ii) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(iii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(iv) If a matter is required to be first reheard and then corrected, it would be an appeal under the guise of review

(v) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(vi) The power of review is to be exercised for “correction of mistake” and not for “substitution of view”. Substitution of view would be the province of an appellate court.

(vii) Merely because a document which was forming part of the record was not considered at the time of deciding the case cannot be categorized as a mistake or error apparent on the face of record.

(viii) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(ix) The mere possibility of two views on the subject cannot be a ground for review.

(x) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(xi) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

(xii) Failure to argue a point at the time of hearing of the matter by the court, is also not a ground for seeking review as it would be a case where the existing material was overlooked by counsel and not a case of excusable misfortune or mistake.

25. A perusal of the aforesaid judgments and principles reveals that the scope of review jurisdiction is narrow. As was rightly summed up by Justice Krishna Iyer in Northern India caterers (India) Ltd. v. Lt. Governor of Delhi 1980 (2) SCC 167, “A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon“. Therefore, unless and until there is patent error in the judgment delivered which is visible on the face of it, the review jurisdiction cannot be exercised.

]]> https://lawfinderblog.com/scope-and-extent-of-review-jurisdiction-of-the-court/feed/ 0 https://lawfinderblog.com/scheduled-caste-reservation-untying-the-knots/?utm_source=rss&utm_medium=rss&utm_campaign=scheduled-caste-reservation-untying-the-knots https://lawfinderblog.com/scheduled-caste-reservation-untying-the-knots/#respond Fri, 06 Jan 2023 08:12:48 +0000 https://lawfinderblog.com/?p=4328

1. Despite 75 years of the independence and continuous implementation of the reservation policy for Scheduled Castes over all these years in our country, still there is so much of confusion and misunderstanding amongst beneficiaries as well as authorities about the whole concept of reservation leading to continuous instances of depriving the genuine beneficiaries and allowing ineligible persons eat the share of bona fide entitled Scheduled Caste persons in a State. Some of the issues being consistently faced are does a migrant acquire the right of Scheduled Caste in the State of migration if his caste is/is not in the list of Scheduled Castes of the State of migration; does acquiring resident status of a State by virtue of residing in that State for 15 years makes a migrant eligible for privileges meant for people of Scheduled Castes in the State of migration, more so if his caste is found in the list of Scheduled Castes of that State; do children of such migrants whose birth takes place in the State of migration and whose caste with same nomenclature is included in the list of Scheduled Castes of the State of migration acquire status of Scheduled Caste person of that State?; does marriage changes caste of a woman, does a woman marrying a man of Scheduled Caste acquires the rights of being a Scheduled Caste of the State of origin of her husband; and whether a Scheduled Caste person carries with him the privileges after conversion to any other religion?

2. Through this article an attempt is being made to clear the cloud of doubts and misconceptions with regard the true spirit and concept of reservation for Scheduled Castes by taking the readers through the journey of evolution and interpretation of provisions by our Constitutional Courts.

A. Migration and Status of Scheduled Caste

3. The Constitution of India is suprema lex. The Preamble of the Constitution of India envisages ‘Sovereign Socialist Secular Democratic Republic’. Whereas in terms of Article 14 of the Constitution of India all persons similarly situated are entitled to enforcement of their fundamental right of equality before the law and equal protection of the laws. Articles 15 and 16 though aim at equality amongst citizens but also provide for certain exceptions. It envisages enabling provisions so as to enable the State to make any special provision for the advancement of any socially and educationally backward classes of citizens as provided in clause (4) of Article 15 of the Constitution of India and for making any provision for the reservation of appointments or posts in favour of any backward class of citizens or for the Scheduled Caste and Scheduled Tribes which, in the opinion of the State, is not adequately represented in the services of the State as provided for in clause (4) of Article 16 thereof. The term ‘backward class of citizens’ contained in clause (4) of Article 16 includes Scheduled Castes and Scheduled Tribes for all intent and purport.

4. The term ‘Scheduled Castes’ has been defined in clause (24) of Article 266 of the Constitution, as per which “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution. Article 341 of the Constitution of India, lays down the procedure and manner by which the castes are specified as “Scheduled Castes”. It reads as under:-

“341. Scheduled Castes:- (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or group within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or groups, within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.“

5. In exercise of power conferred under Article 341 (1) of the Constitution of India, the President of India made Constitution (Scheduled Castes) Order, 1950 (as amended from time to time) thereby specifying the castes as “Scheduled Castes”. Paragraph (2) and (3) of the order provides as under:

“2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXV of the Schedule to this order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of the Schedule.

3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.”

6. Indisputably, having regard to clause (2) of Article 341 of the Constitution tinkering with the said list is impermissible, save and except by a law made by the Parliament. The reading of the aforesaid paragraphs of the Constitution Order reveals that “resident” status of a person with respect to a locality is the focal point for determining whether his caste is `Scheduled’ or not. This aspect has been time and again clarified by the various notifications issued by Government of India. The instructions dated 22.03.1977 are relevant to shed light on the aspect of residence with respect to the status of a caste. The communication reads as under:-

“Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the liberal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality.“

It further elaborated as

“Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case, say, for example, to earn a living or seek education, etc., can also be regarded as a Scheduled Caste or a Scheduled Tribe, as the case may be, if his caste/tribe has been specified in that Order in relation to his State/UT. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order.”

In respect of persons who are born after the date of Presidential Notification, it provides as under:-

“In the case of persons born after the date of notification of the relevant Presidential Order, the place of residence for the purpose of acquiring Scheduled Caste or Scheduled Tribes status, is the place of permanent abode of their parents at the time of the notification of the Presidential Order under which they claim to belong to such a Caste/Tribe.”

7. In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had migrated. To remove this difficulty, earlier instructions contained in the letters of 22.03.1977 and 29.06.1982 were modified by the Government of India by the subsequent letter dated 18.11.1982. By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father/mother by the prescribed authority of the State of the father’s/mother’s origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. This clearly meant that the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate.

8. The proposal regarding reduction in the period of cut-off point of date for migration was spurned by the Government of India vide a subsequent letter dated 15.10.1987 addressed to Secretary, Social Welfare, Maharashtra Government. It was Stated that the proposal could have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on all-India basis which, it was said, was not feasible in view of the provisions of Articles 341 and 342 of the Constitution. It is thus clear that a Scheduled Caste/ Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/ Scheduled Tribe of the State to which he migrates and hence, he cannot claim benefit as such in the latter State.

9. The controversy, as regards the status of a person belonging to a Scheduled Caste/Tribe on his/ her migration to the State other than State of origin, has come up for consideration before the honorable Courts frequently. The Constitution Bench of Apex Court in and Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of India and Anr., (1994) 5 SCC 244, have interpreted the scheme of Constitution to settle the controversy.

10. In Marri Chandra Shekhar Rao (supra), the Constitution Bench held that the expression “in relation to that State” would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. For example, in Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere of Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. It has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution. The Apex Court also noted the fate of such migrants where the migration was involuntary and answered that question in para 21 of its Judgment as under :-

“21. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the States of origin when, because of transfer or movement of their father or guardian’s business or service, they move to other States as a matter of voluntary transfer, will they be entitled to some sort of protective treatment so that may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to other is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has so migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. this is a matter which the State legislatures or the Parliament may appropriately take into consideration.“

11. The Constitution Bench while rejecting the contention of the petitioners that on migration the caste or tribe of the person concerned does not change and if such person is denied the concessions, benefits and privileges available to Scheduled Castes and Scheduled Tribes in the State to which he migrates, such a denial would be in violation of Article 14 of the Constitution, in that, the right to equality and equal treatment would be denied, observed that the same cannot be sustained. In the case of Action Committee (supra) the question posed by the Constitution Bench was as under:-

“Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Schedule tribes in State B?”

The Apex Court while referring to the judgment in Marri Chandra (supra) made following observations:

“It must also be realised that before specifying the castes or tribes under either of the two Articles the President is, in the case of a State, obliged to consult governor of that State. Therefore, when a class is specified by the President, after consulting the governor of State A, it is difficult to understand how that specification made ‘in relation to that State’ can be treated as specification in relation to any other State whose governor the President has not consulted. True it is that this specification is not only in relation to a given State whose governor has been consulted but is ‘for the purposes of this Constitution’ meaning thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. The Constitution Bench has, after referring to the debates in the Constituent Assembly relating to these Articles, observed that while it is true that a person does not cease to belong to his caste/tribe by migration he has a better and more socially free and liberal atmosphere and if sufficiently long time is spent in socially advanced areas, the inhibitions and handicaps suffered by belonging to a specially disadvantageous community do not truncate his growth and the natural talents of an individual gets full scope to blossom and flourish. Realising that these are problems of social adjustment it was observed that they must be so balanced in the mosaic of the country’s integrity that no section or community should cause detriment or discontentment to the other community. Therefore, said the Constitution Bench, the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled to in order to become equals with others but those who go to other areas should ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas.”

12. The Full Bench of the Bombay High Court in the case of Shweta Santalal Lal v. State of Maharashtra, (2010) 32 R.C.R. (Civil) 288, while considering the question that ” Whether a person who was not ordinarily resident as on the date of the relevant Presidential Notification in the area that now constitutes the State of Maharashtra will be entitled to the benefit of reservation in the State”, observed that what was relevant is not the date of migration, but the date of inclusion of caste or tribe in the Schedule. The person must be ordinarily resident on the date of the Presidential Notification in the geographical area from which such person claims the benefit. If a person migrates to a geographical area forming part of another State after the date of Presidential Notification, such a person will be treated as a migrant. After placing reliance on the law laid down by the Apex Court, the question framed was answered in the following terms:-

“In case of a migrant belonging to a Scheduled Caste, not ordinarily resident as on 10.3.1950 in the area that now constitutes the State of Maharashtra and in a case of S.T., considering Rule 5, on 6.9.1950, would not be entitled to benefits of reservation as S.C./S.T. in the State of Maharashtra. They and their progeny will continue to get the benefits of reservation in the State of origin.”

13. This judgment made the position of the children of migrants born in the State of migration abundantly clear. Thus, what stands now as per law laid down is that not just the first generation migrants but their children and further generations born after effective date of notification are not entitled to get any benefits meant for Scheduled Caste/Tribes from the State of migration even if their caste by same name is recognized as Scheduled Caste or Scheduled Tribe in the State of migration and/or in their State of origin. Furthermore, the State of origin is not defined by the birth or domicile (resident) of a State. This has been clarified by the Government of India through communication of 22.03.1977 thereby clarifying that it is the permanent abode at time of the relevant notification which is to be seen even for the children born after the date of notification. And the prescribed Revenue authorities of that place of permanent abode at the time of relevant notification alone can issue the caste certificate. The said communication has passed the judicial scrutiny in the case of Action Committee (supra).

14. Recently, the Hon’ble Supreme Court of India in Ranjana Kumari v. State of Uttarakhand & Ors., (2019) 15 SCC 664, observed that two Constitution Bench judgments of this Court in Marri Chandra and Action Committee have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State and, issuance of a caste certificate by the State to a migrant cannot dilute the rigours of the these Constitution Bench Judgments.

15. Therefore, as far as status of migrant is concerned, law is categoric and clear that a person take benefit related to caste only in the State of origin and not in the Sate to which it has migrated for any reason.

16. Another question that arises here is whether the law laid by both the Constitution Benches applies only to matters pertaining to reservation benefits sought for educational and service purposes, or does it extend to all the matters related with the Scheduled Caste/Tribe. This has been answered by the Supreme Court in the latest judgment in Bhadar Ram v. Jassa Ram, (2022) 4 SCC 259, stating that the decision in the case of Action Committee (supra) shall be applicable with full force even to a dispute with respect to sale /sale of property as the reasonings given in the case of Action Committee (supra) are on interpretation and on a plain reading of Clause I of Articles 341 and 342 of the Constitution of India. And there is no reason to restrict the applicability of the decision only with respect to employment, education or the like and not to make applicable the same with respect to purchase and sale of the property as in present case of sale and purchase of the land belonging to a Scheduled Caste person in the State of Rajasthan and when the said land was allotted to the original land owner as Scheduled Caste landless person.

17. Thus, the law as laid down by Hon’ble Supreme Court is that a person and his progeny can claim benefits of reservation only from the State of origin, that is, the State where they had their permanent abode on the date of relevant notification and under no circumstance it can be extended to migrants of that caste who came to State after the relevant notification, even if they have lived in State of migration for very long period, their children or grandchildren are born and brought up in that State, even if they have got their education and are employed or have established business in that State or even if whatsoever amount of land and property they may have acquired in that State. It is certainly not permissible under law to dilute this provision and allow any person to get benefits meant for Scheduled caste from the State of migration on the ground that he/she was born in that State or have become resident of that State by virtue of staying in that State for 15 years or more.

B. Does Marriage acts as a Gateway to Scheduled Caste Benefits

18. The ancient Hindu tradition of wife adopting the `surname’ of the husband after marriage, often leads to misconception that the `caste’ of the wife changes to that of her husband after marriage. But here it must be understood that the caste is attained by birth (exceptional cases being of inter-caste marriages, adoption etc) and cannot change upon marriage. The issue is no longer res-integra, for it stands settled by Hon’ble Supreme Court of India in its various decisions. At first reference is made to the judgment of the Apex Court in Mrs. Valsamma Paul v Cochin University, (1996) 2 SCT 248, wherein following question was framed for consideration:

“Whether a candidate, by marriage, adoption or obtaining a false certificate of social status would be entitled to identification as such member of the class for appointment to a post reserved under Article 16(4) or for an admission in an educational institution under Article 15(4)?”

19. The Apex Court while answering the question in negative, observed that the object of reservation is to remove handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nation’s life by providing them opportunities and facilities. Therefore, a candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.

20. The aforesaid principle has recently been reiterated by the Apex Court in Sunita Singh v. State of Uttar Pradesh and others, (2018) 2 SCC 493, wherein a complaint was lodged against the appellant to the effect that she was born in “Agarwal” family (general caste category) and after her marriage with a person of Scheduled caste, she obtained the caste certificate in question. After making preliminary verification, the jurisdictional officer directed to conduct an enquiry in respect of the caste certificate of the appellant. The Tehsildar vide his order dated 22/27.6.2013 cancelled the caste certificate of the appellant and asked the appellant to return the caste certificate issued earlier to the appellant. The Court observed that there cannot be any dispute to the fact that the caste is determined by birth and the caste cannot be changed by marriage with a person of Scheduled caste. Undoubtedly, the appellant was born in “Agarwal” family, which falls in general category and not in Scheduled caste. Merely because her husband is belonging to a Scheduled caste category, the appellant should not have been issued a caste certificate showing her caste as Scheduled caste.

21. Significantly, not only in the case of appointment but also in the cases of election, the Apex Court has consistently followed the aforesaid principles. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy (2005) 2 SCC 244, while upholding the conclusion arrived at by the High Court, Hon’ble Supreme Court held that marriage by a non-tribe in a Scheduled tribe will not confer a status of such Scheduled tribe upon him/her so as to claim benefits of reservation under Articles 15(4) or 16(4) or 330 and 332 for such tribes for election or service. The said reservation would benefit only those who belong to a Scheduled caste or Scheduled tribe and not those who claim to acquire the status by marriage. Although it recognized that in a given case acceptance of such a marriage by the community may be held to subserve the purpose but in no uncertain terms held that reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly are constitutional reservations.

22. Likewise, in Sandhya Thakur v. Vimla Devi Kushwah, 2005 (2) SCC 731, the appellant was born a Maharashtrian Brahmin. She married to one Naresh Kumar Thakur who was a Namdev by caste. She filed her nomination for election for the post of Corporator for a Ward reserved for backward communities and got elected. The Apex Court while reiterating the law laid down in Sobha Hymavathi Devi (supra), observed “In the light of the decision in Valsamma Paul v. Cochin University and Others (supra) and our decision rendered today in Sobha Hymavathi Devi v. Setti Gangadhara Swamy, which were heard along with this appeal, it must be held that the appellant, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community…”

23. On a later occasion in Meera Kanwaria v. Sunita & Ors. (2006) 1 SCC 344, wherein the respondent contested an election for the Municipal Councilor from a seat reserved for a Scheduled caste woman and was declared elected. This was challenged by way of election petition on ground that the first respondent herein was born in an upper caste family, she could not have been considered to be belonging to Scheduled caste by reason of her marriage only. Hon’ble Supreme Court observed that it is one thing to say that a lady belonging to a forward caste has been accepted by the community to which her husband belongs; but it is another thing to say that her marriage has been accepted only by her husband’s family.

24. Recently, in the case of Ranjana kumari (supra), a three Judges Bench of Hon’ble Supreme Court had an occasion to consider the issue that if the caste of a migrant by way of marriage to person of Scheduled caste is found in the list of Scheduled castes of the State of migration as well, will the migrant be entitled to the status of Scheduled caste in the State of migration. In this case, the appellant belonged to Valmiki caste (Scheduled caste of the State of Punjab), who married a person belonging to Valmiki caste of Uttarakhand and migrated to that State. It was found that in the State of Uttarakhand also, under the Presidential order `Valmiki’ was recognized as notified Scheduled caste and accordingly, the State of Uttarakhand issued a caste certificate to the appellant. However, later it denied the benefits available to the Scheduled Caste belonging to State of Uttarakhand to the appellant. Thereafter the appellant approached the High Court. The High Court rejected the claim and said decision came to be challenged before the Apex Court. The said appeal was also dismissed with observations that in view of the two Constitution Bench judgments in Marri Chandra Shekar Rao (supra) and Action Committee (supra), merely because in the migrant State same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State.

25. Therefore, it is evident from the above judgments that the law as it stands today, it is very clear and categorical that a person who does not belongs to a Scheduled Tribe or a Scheduled Caste category by birth, simply by virtue of marrying a person belonging thereto cannot gain the status of that particular caste or tribe. Thus, let alone a General category candidate who marries a person belonging to a Scheduled Caste or a Scheduled Tribe, even a person belonging to Scheduled Caste or Scheduled Tribe of one State cannot get the benefit of Scheduled Caste or Scheduled Tribe in another State. These provisions are to benefit the real underprivileged of the State and not to be extended to those who come to the class by way of marriage or migration. However, SC/ST woman by birth would be eligible to take benefits of belonging to “Scheduled caste” category in the State of origin.

C. Claims Made by Off-Springs of Inter-Caste Marriages and Adopted Children

26. Another issue which is coming up for consideration before the courts is the claims made for social status certificates by off-springs of inter-caste marriage couples wherein the mother belongs to reserved backward class, may be Scheduled caste or Scheduled tribe or Other Backward class (OBC) recognized under the Constitutional scheme. While answering this question, each case has to be dealt with individually on the basis of its own facts. But the underlying principle remains same as discussed earlier – the claimant must have had suffered deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Courts had been liberal enough in the post-Constitutional, independent India where there is such great consciousness and so much effort is being made for the empowerment of women and when instances of inter-caste marriage are ever on the increase in such cases by not to rigidly follow the age-old tradition that the child gets its caste from the father.

27. In changing times when the society is acknowledging the family raised by single biological and adoptive mothers, there is a need to have a pragmatic approach while dealing with such cases. The reference here is made to the recent judgment delivered by the Bombay High court in Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, (2022) 2 ALL MR 729, wherein the petitioner approached the High Court after she being single adoptive mother was denied caste certificate for her adopted son whose biological parents were unknown. While reflecting upon the provisions of section 12 of the Hindu Adoptions and Maintenance Act, 1956, Court observed that a conjoint reading of section 12 and section 9 sub-section 4 of this Act provides that the adopted child becomes a child of his or her adoptive father, mother for all purposes with effect from the date of the adoption and hence such a child would take the caste of the adoptive parents. While allowing the petition Court observed that the child being adopted from orphanage if not allowed to take caste of his mother would remain without identity throughout his life which would frustrate the very purpose of adoption, a situation not envisaged by law. Moreover, being raised by the single mother belonging to a Scheduled caste the fact that he has suffered the deprivations and humilities which his mother has faced being a member of Scheduled caste community could not be denied.

28. The law as laid down in Rameshbhai Dabhai Naika v. State of Gujrat, (2012) 3 SCC 400, by the Supreme Court is that while the presumption that the child has the caste of father is strong in inter-caste marriages and more so in marriages where the father belongs to a forward caste, but nonetheless by no means such presumption is conclusive or irrebuttable and it is open for the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled caste/tribe. And also to prove that he/she did not have any advantageous start in life being born to a forward caste father. But on the contrary, suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.

29. At the same time the Courts have cautioned that any concerned authority issuing such certificates in a routine manner would be committing the dereliction of Constitutional duty. In Anjan Kumar v. Union of India (2006) 3 SCC 257 while deciding the question as to whether the offshoot of the tribal woman married to non-tribal husband could claim status of Scheduled Tribe and on the basis of which the Scheduled Tribe certificate could be given, it observed that the Scheduled Caste and Scheduled Tribe Certificate is not a bounty to be distributed. To sustain the claim, one must show that he/she suffered disabilities – socially, economically and educationally cumulatively. The concerned authority, before whom such claim is made, is duty bound to satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued.

30. A similar controversy erupted in the case of Rumy Chowdhury v. Department Of Revenue, (2020) 5 AD(Delhi) 402, before Delhi High Court wherein the appellant was serving as a Wing Commander in the Indian Air Force and belonged to a Scheduled Caste community in Assam. After dissolution of her marriage, the appellant miserably failed before the Executive Magistrate to rebut the presumption drawn against her that her two children have the caste of their father, who belongs to a forward caste. Apart from contending that the ex-husband of the appellant has re-married and has nominated his children from the second marriage for all the benefits and that he has not provided any alimony to the appellant, no evidence had been brought on record to demonstrate the deprivations, humilities, handicaps, faced by the appellant or her children in their life. Such positive evidence was woefully lacking. The children were born when the marriage was subsisting and therefore, they were not entitled to the community certificate of the caste to which the appellant belongs. After the divorce, the children continued to keep the surname of the father, which showed that they have projected themselves to the society as belonging to a forward community. In the absence of any positive or cogent evidence demonstrating that the community of the mother had accepted the children and they have grown-up in the company of their relatives from the maternal side and had attended family holidays, ceremonies, rituals, gatherings, etc., thereby assimilating into the community, simply on the strength of the appellant having raised the children on her own, they cannot be entitled to a certificate of the caste to which their mother belongs. Court went a step ahead in observing that as the appellant was serving at a senior post in the Indian Air Force, her children have had the advantage of a safe, secure and sheltered environment, excellent schooling and other related opportunities. There was no occasion for them to have suffered any destitution, deprivation or denial, as would have been suffered by a member of the Schedule Caste from which their mother hails, to be eligible for a caste certificate. On the contrary, issuance of a caste certificate to the appellant’s children would result in depriving a genuine Schedule caste person of an opportunity to claim entitlement to the limited number of Schedule caste seats reserved in higher education and in service, thereby causing a setback to the equality goal enshrined in the Constitution.

31. The observations made by the Court goes on to show that the ultimate test in such case would be, whether the children were subject to deprivation, humility, denial or destitution on account of being a member of Scheduled caste/ tribe. In absence of such evidence, no benefit could be given based upon caste of the mother. It would be no gainsaying that these observations shall act as a guiding light so as to bring a balance in the approach of the legislatures that how long the blanket reservation to all who belong to the Scheduled castes be given viz-a-viz should it be denied to those who have been able to break the shackles of discrimination over the generations by availing the benefits meant for their community and should pave way for the more deprived to let them have better platform to get out of the social and economic disabilities they are facing since times immemorial owing to their caste.

D. Conditions for Acceptance for Scheduled Caste Benefits in Cases of Conversion and Reconversion

32. After having discussed the effect of migration and marriage upon the entitlement of person to caste related benefits, another aspect which is worth discussion is “effect of conversion upon the caste of a person”. Recently, the Apex Court has also seized of this issue and the Centre Government has appointed a Commission headed by former Chief Justice K.G Balakrishnan to examine the matter of according Scheduled caste status to new persons who claim to have historically belonged to the Scheduled Castes, but have converted to a religion other than those mentioned in the Presidential Orders under Article 341 of the Indian Constitution. Even though matter is under consideration, but it is important to the have a re-look on the judicial pronouncements in this regard by the courts.

33. As early as in 1952, while dealing with the issue of conversion in G. Michael v. S. Venkateswaran, 1952 (1) MLJ 239, the Hon’ble Court observed that a member of one of the castes or sub-castes when converts to Islam ceases to be a member of any caste. He becomes just a Mussalman and his place in Muslim society is not determined by the caste to which he belonged before his conversion. This decision of the Madras High Court was approvingly cited recently in K.P. Manu v. Scrutiny Committee, (2015) 4 SCC 1.

34. In C.M. Arumugam v. S. Rajgopal and Others, (1976) 1 SCC 863, three judges Bench of Supreme Court observed that the Paragraphs 2 and 3 of the Constitution (Scheduled Castes) Order, 1950 also support the view that even after conversion, a person may continue to belong to a caste which has been specified in the Schedule to that Order as a Scheduled Caste. Paragraph 2 provides that the castes specified in the Schedule to the Order shall be deemed to be Scheduled Castes but Paragraph 3 declares that, notwithstanding anything contained in Paragraph 2, that is, notwithstanding that a person belongs to a caste specified as a Scheduled Caste, he shall not be deemed to be a member of the Scheduled Caste, if he professes a religion different from Hindu or Sikh religion. Paragraphs 2 and 3 read together thus clearly recognise that there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion and if that be so, it must follow a fortiori, that in such cases, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though by reason of Paragraph 3 he would be deemed not to be a member of a Scheduled Caste.

35. The Constitution Bench in The Principal, Guntur Medical College, Guntur v. Y. Mohan Rao, (1976) 3 SCC 411, has clearly laid down that if a person born to Christian parents, who, belonging to Scheduled Caste had converted themselves to Christianity, the said person on reconversion to his religion and on acceptance by his community with a further rider that he would practise the customs and traditions of the caste, would be treated as a member of the said Scheduled Caste and if the said caste is one of the castes falling within the Constitution (Scheduled Castes) Order, 1950, then he will be treated as a Scheduled Caste. The larger Bench in S. Anbalagan v. B. Devarajan, (1984) 2 SCC 112, dealt in detail with the legal position in regard to caste status on conversion or reconversion to Hinduism. It observed that the precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In this case the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, but as per the evidence in the case the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There was not a scrap of acceptable evidence to show that he ever professed Christianity. On the other hand, evidence in the case showed that from his childhood, he was always practising Hinduism and was treated by everyone concerned as an Adi Dravida. Hence, the Court held him as a member of Scheduled caste and upheld his election in Lok Sabha against seat reserved for Scheduled caste candidate.

36. In three-Judge Bench decision in Kailash Sonkar v. Maya Devi, (1984)2 SCC 91 the Court posed the issue thus:

“The knotty and difficult, puzzling and intricate issue with which we are faced is, to put it shortly, “what happens if a member of a scheduled caste or tribe leaves his present fold (Hinduism) and embraces Christianity or Islam or any other religion” does this amount to a complete loss of the original caste to which he belonged for ever and, if so, if he or his children choose to abjure the new religion and get reconverted to the old religion after performing the necessary rites and ceremonies, could the original caste revive? The serious question posed here arose and has formed the subject-matter of a large catena of decisions starting from the year 1861, traversing a period of about a century and a half, and culminating in a decision of this Court in the case of C.M. Arumugam v. S. Rajagopal.”

The Court, after referring to several decisions including the decision in C.M. Arumugam (supra), has held thus:

“31. In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.

32. Another aspect which one must not forget is that when a child is born neither has he any religion nor is he capable of choosing one until he reaches the age of discretion and acquires proper understanding of the situation. Hence, the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms, his caste automatically revives.”

Thus, it was held that the caste to which a Hindu belongs is essentially determined by birth. Upon conversion original caste remains under eclipse and as soon as the person is reconverted to the original religion, the eclipse disappears and the caste automatically revives.

37. Clarifying this issue, the Hon’ble Supreme Court of India in the case of K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate, (2015) 4 SCC 1, has laid down three tests to be passed by the person for claiming the benefit of “Scheduled caste” on reconversion. These are (i) there must be absolutely clear cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950; (ii) there has been reconversion to the original religion to which the parents and earlier generations had belonged; and (iii) there has to be evidence establishing the acceptance by the community. In order to get recognition, all three aspects need to be substantiated, otherwise recognition would not be possible.

38. Therefore, as far as law regarding “reconversion” is concerned, it is settled, however, there is still less clarity as regards the status of persons, who convert to a religion other than those mentioned in the 1950 Order from the Scheduled Caste community and their entitlement to the benefit of reservation as Scheduled Caste. The said question is pending consideration before the Larger Bench as stands referred in Centre, Public Interest Litigation & Another v. Union of India. (Writ Petition (Civil) No.180 of 2004 vide order dated 21.01.2011) and as stated above the Commission constituted by the Central Government is also considering this aspect.

39. The aforesaid discussion goes on to show that the intent and object of the Constitution is very clear i.e., to uplift the persons who have faced dejection, destitution and humiliation on account of belonging to a particular caste. To ensure the same, restrictions have been imposed so that the persons who have had benefit of belonging to a forward class or practice a religion which does not recognize caste system do not hijack the benefits to the prejudice of actually deserving beneficiaries.

]]> https://lawfinderblog.com/scheduled-caste-reservation-untying-the-knots/feed/ 0 https://lawfinderblog.com/sanctity-of-limitation-period-prescribed-under-land-acquisition-act-1894/?utm_source=rss&utm_medium=rss&utm_campaign=sanctity-of-limitation-period-prescribed-under-land-acquisition-act-1894 https://lawfinderblog.com/sanctity-of-limitation-period-prescribed-under-land-acquisition-act-1894/#comments Mon, 31 Jan 2022 09:37:14 +0000 https://lawfinderblog.com/?p=4198 Though Land Acquisition Act 1894 (hereinafter referred as ...]]>

Though Land Acquisition Act 1894 (hereinafter referred as “Act of 1894”) today stands repealed with the enactment of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred as “Act of 2013”), yet it is very much alive for the acquisition proceedings wherein award under Section 11 of Act of 1894 was announced prior to 01.01.2014 i.e. date of enforcement of Act of 2013 by virtue of saving clause provided in Section 24(1)(b) of the Act of 2013. The references for enhancement in compensation are still being decided by the Reference Courts, High Courts and Supreme Court, therefore, time and again the Courts are being called upon to interpret the provisions of Act of 1894.

The Scheme of the Act of 1894, especially after amendment in the year 1984, seeks to provide for a time limit within which the acquisition is to be completed. For instance, declaration under section 6 of the Act of 1894 shall be issued within one year of the publication of notification under section 4, provided any period during which stay was in operation shall be excluded and further Section 11-A of Act of 1894 provides that award shall be announced under section 11 within a period of two years from the date of publication of the declaration under section 6 of the Act of 1894. Failing to adhere to this time limit results into lapsing of acquisition proceedings. It is not only with respect to the completion of acquisition proceedings that the time limit has been prescribed, but even for seeking enhancement in the compensation awarded, it is incumbent to pursue the remedies under the Act of 1894 strictly within the limitation period prescribed. The present article sheds light on the sanctity of the limitation period prescribed under section 18 and Section 28-A of the Act of 1894 for seeking enhancement in compensation or re-determination of compensation respectively.

Section 18(1) of the Act of 1894 envisages that any interested person who has not accepted the award may, by application in writing to the Collector, require him to refer the dispute raised in the application for the determination of the Court. Under sub section (2), the grounds on which objection to the award is taken have to be stated in the application. However, under the proviso to sub-Section (2) every application shall be made (a) if the person making it was present or represented before the collector at the time when he made his award, within 6 weeks from the date of the collector’s award; (b) in other cases, within 6 weeks of the receipt of the notice from the collector under Section 12(2), or within 6 months from the date of the collector’s award, whichever, period shall first expire. It is therefore, clear that if the interested person was present at the time Collector made the award, he should make the application within 6 weeks from the date of the award of the Collector. In other cases, it should be made within 6 weeks after the receipt of the notice from the Collector under Section 12(2) or within 6 months from the date of the Collector’s Award, whichever period shall first expire. Thus, a specific period of limitation within which an application under Section 18 is to be submitted is provided under the Act of 1894. Where on hand the limitation is prescribed, it is also relevant to mention that nowhere does the act envisages about the condonation of delay in submitting the application. Therefore, the first and foremost question that arises for consideration is whether such delay in filing application for reference can be condoned or not?

The issue regarding condonation of delay in making applications for reference U/s 18 is no more res integra and has been answered by the Hon’ble Supreme Court of India in catena of judgments. The landmark pronouncement in this regard, is the judgment of the 3 judges bench of the Hon’ble Supreme Court of India in the case of Mohammed Hasnuddin v. State of Maharashtra (1979) 2 SCC 572. The Hon’ble Court in the aforesaid case was seized of the issue as to whether the Court in dealing with the reference under Section 18(1) of the Act of 1894 can go behind the reference made by the Collector if the application on which the reference has been made beyond the period of limitation prescribed therein. While answering the issue framed, the Hon’ble Court observed that the word `requires’ used in Section 18 of the Act of 1894 implies “compulsion”. It carries the idea that the written application makes it incumbent on the collector to make a reference. The collector is required to make a reference under Section 18 of the Act of 1894 on the fulfilment of 3 conditions firstly, there shall be a written application by person interested who has not accepted the award, secondly nature of the objections which may be taken and thirdly time within which the application shall be made. Since, the conditions laid down in Section 18 of the Act of 1894 are matters of substance and their observance is a condition precedent to the Collector’s power of reference, the Hon’ble Court categorically held that the making of an application for reference within the time prescribed by proviso to Section 18(2) of the Act of 1894 is a sine qua non for a valid reference by the Collector. If the application under Section 18 of the Act of 1894 is not made within time, the collector will not have the power to make a reference and if such reference is made beyond the limitation, the Court has no jurisdiction to hear such reference. Therefore, the Hon’ble Supreme Court of India in many words clarified that no reference under Section 18 of the Act of 1894 can be made beyond the prescribed limitation in proviso to Section 18(2) of the Act of 1894.

The aforesaid proposition of law was taken a step ahead by the Hon’ble Supreme Court of India in the case of Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal and others (1996) 9 SCC 414, wherein the Hon’ble Supreme Court of India precisely framed the question as to whether Section 5 of the Limitation Act, 1963 would apply for condoning the delay in making application for reference under Section 18(1) of the Act of 1894. Suffice to mention that in order to exercise power under Section 5 of the Limitation Act, 1963 the forum exercising the power shall be a `Court’. Thus, for arriving at the answer to the aforesaid question, the Hon’ble Apex Court firstly sought to decide whether collector is a Court for the purpose of Section 18(1) of the Act of 1894 or not. The reliance was placed on Mohammed Hassnudin (supra) to hold that when the collector makes reference under Section 18(1) of the Act of 1894 he acts as a statutory authority. Further, reference was made to Section 3(d) of the Act of 1894 which defines Court to mean the principal Civil Court of original jurisdiction or a principal judicial officer within any special local limits appointed there under to perform the functions of the Court under the Act. The definition of the Collector is provided under Clause 3(c) to mean the Collector of District and includes a Deputy Commissioner etc. appointed by the appropriate Government to perform the functions of the Collector under the Act. Therefore, a clear distinction is made between the Collector and the Court in the scheme of the Act itself, therefore, the Hon’ble Court categorically held that the Collector is not a Court when he acts as a statutory authority under Section 18(1) of the Act of 1894, thus, Section 5 of the Limitation Act cannot be applied for the extension of the period of limitation prescribed under proviso to sub section (2) of Section 18 of Act of 1894. In the light of the conclusion that Collector is not a “court”, the Hon’ble Court held that if the application for reference under section 18 of the Act of 1894 is not made within time as prescribed in the act, Collector will not have any power to make reference.

On one hand it is the duty of the Collector to decide whether an application seeking reference has been made within time or not, on the other hand the Reference Court shall also determine the validity of reference of which one essential element is time within which such application for reference was filed as the very jurisdiction of the court to hear a reference depends upon a proper reference being made under Section 18. If the reference made is not proper, the court has no jurisdiction to hear the same. If the reference is beyond the prescribed period by the proviso to sub-section (2) of Section 18 of the Act and if it finds that it was not so made, the court would decline to answer the reference.

The another important facet of limitation period prescribed in section 18 of the Act of 1894 is the date of reckoning of such limitation period. As discussed herein above, the proviso to sub section (2) prescribed three dates of commencement of limitation which are:-

(a) if the person making it was present or represented before the collector at the time when he made his award the application shall be made within 6 weeks from the date of the collector’s award;

(b) in other cases, within 6 weeks of the receipt of the notice from the collector under Section 12(2), or within 6 months from the date of the collector’s award, whichever, period shall first expire.

As far as the date of commencement of limitation from date of collector’s award where person is present and date of receipt of notice under section 12(2) of Act of 1894 is conacred, there is no ambiguity. However, by way of judicial pronouncements the “the date of collector’s award” as used in clause (b) has been interpreted to mean “date of knowledge of award”. Where, the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the person interested and affected by the award made by the Collector under section 11 of the Act of 1894, either actual or constructive is an essential requirement. Therefore, the Hon’ble Supreme Court of India in the case of State Of Punjab v. Mst. Qaisar Jehan Begum and Anr. AIR 1963 SC 1604, held that the date of award shall be interpreted to mean knowledge of award and such knowledge does not mean a mere knowledge of the fact that an award has been made but it should relate to the essential contents of the award.

The view of the courts across the country has remained static that the application for reference under section 18 of the Act of 1894 shall be made within the limitation prescribed in the Act and there is no scope for condonation of such delay. The reference can be made to the judgments passed in the case of State of Karnataka v. Laxuman, (2005) 8 SCC 709, Harbans Singh v. State of Punjab RFA No. 2513 of 1992, Raghuwansh Chaprana and others v. State of Haryana and others RFA No. 805 of 2006 and Gram Panchayat, Bajghera v. State of Haryana and others RFA No. 5204 of 2015. Suffice to mention that Section 64 of the Act of 2013 envisages similar provision as that of section 18 of the Act of 1894 and thus, the settled law has to be followed in relation to the new Act as well.

Considering the fact that there can be persons who failed to submit an application for reference seeking enhancement in compensation, another remedy in terms of Section 28-A of the Act of 1894 was added in the Act by way of amendment in the year 1984. The said provision was added considering the fact that the right of reference to the Civil Court under Section 18 of the Act is not usually taken advantage of by inarticulate and poor people and is usually exercised by the effluent land owners which causes inequality in the payment of compensation, therefore, a right was sought to be provided to such land owners to make an application under Section 28-A of the Act of 1894 seeking compensation based upon the award announced by the reference Court. The analogous provision in the Act of 2013 is contained in the form of Section 73 and the interpretation given to Section 28-A of the Act of 2013 is equally applicable on Section 73 as well.

Sub-section (1) of Section 28-A of the Act of 1894 provides that after an award is made under Part-III whereby the Reference Court enhances to compensation awarded by the Collector under Section 11, a right accrues to a persona interested in the other land covered by the same notification under Section 4 of the Act of 1894, who is also aggrieved by the award of the Collector but did not make an application for reference under Section 18, to move an application before the collector for re-determination of the amount of compensation payable to him on the basis of the amount of compensation awarded by the Court. Once again, this right comes with a specific limitation as this application for re-determination is required to be made within 3 months from the date of the award of the reference Court. The right to make the application under Section 28-A arises from the date of the award made by the reference Court, therefore, the limitation of 3 months also starts from the date of the award by the Court disposing of the reference under Section 18 of the Act of 1894. Since the Act also envisages the provision of appeal, therefore, earlier there was confusion as to whether the phrase date of award of court would mean “Reference Court” or the appellate court will also come within its ambit.

This controversy was finally adjudicated upon by the Hon’ble Supreme Court of India in the case of Jose Antonio Cruz Doz R. Radrigues v. Land Acquisition Collector 1997(2) RCR (Civil) 21, wherein the Hon’ble Apex Court categorically held that the award of court would mean the award of reference court only and not of appellate court. While reaching to this conclusion the Hon’ble Court observed that the first part of section 28-A begins with the words “Where in an award under this part, Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11“, the perusal of these words clearly implies that the legislature was talking of an award made under the provisions of Part III, i.e., an award under Section 11 and therefore, in that context, reference to `Court’ can only mean the court to which a reference is made by the Collector under Section 18. Further second part of the section addresses “the persons interested in all the other land covered by the same notification … and who are also aggrieved by the award” and permits them to make a written application to the Collector “within three months from the date of the award of the Court” requiring him to redetermine the amount of compensation on the basis of the amount awarded by the Court, notwithstanding the fact that they had not sought a reference under Section 18 of the Act. Thus, a clear inference can be drawn that section 28-A of Act of 1894 intends to give the same benefit, which a person who had sought a reference and had secured the Court’s award for a higher amount of compensation had received, to those who had, on account of ignorance or financial constraints, not sought a reference under Section 18. Even in the latter part, the reference has been made to award under section 11 of Act of 1894 and then to reference under section 18 of Act of 1894, therefore, the limitation prescribed under section 28A of Act of 1894 shall start from the award of Court deciding the reference under section 18 of Act of 1894 and not the decision of the appellate court dealing with appeal against the award of Reference Court. In Union of India v. Pardeep Kumari AIR 1995 SC 2259, the Hon’ble Apex Court observed that Section 28-A of Act of 1894 does not imply only first award by Reference Court but any award of reference Court made in respect of the main award.

As far as the condonation of limitation in filing application for re-determination under Section 28-A of the Act of 1894 is concerned, the Hon’ble Supreme Court of India in the case of State of AP and another v. Marri Venkaiah and others cited as (2003) 7 SCC 280 held that the language of Section 28-A of the Act of 1894 is very clear that the application u/s 28-A is to be filed within three months from the date of the award by the court and any application received thereafter, is absolutely time barred. In addition to this, the Hon’ble Court categorically observed that even the exclusion of time on the ground of knowledge by the land owner(s) is not permissible within the parameters of Section 28-A. The Hon’ble Court has explained that Section 28-A of Act of 1894 is in the form of beneficial legislation and in order to take advantage of same person has to be vigilant and has to take appropriate action within the prescribed time. This proposition of law was reiterated by the Hon’ble Apex Court in the case of Popat Bahiru Govardhane and others v. Special Land Acquisition Officer and another (2013) 10 Supreme Court Cases 765, wherein the Hon’ble Court was adjudicating upon the issue as to whether limitation for filing the application for redetermination of the compensation u/s 28-A of the Act of 1894 would commence from the date of the award or from the date of knowledge of the court’s award on the basis of which such application is being filed. While negating the contention of the appellants that the date of knowledge shall be the point of commencement, the Hon’ble Court reiterated that the limitation to file an application u/s 28-A shall commence from the date of award of court and the court has no power to extend the period of limitation even on equitable grounds by ignoring the express provision of the Act.

Once it is clear that the application for re-determination can be made within three months from the date of award of Reference Court, a very pertinent question arises that if the compensation is further enhanced by the appellate court, then what is the remedy with the landowners who have sought re-determination of compensation in terms of enhancement made by reference court. In order to take care of such eventualities, the Hon’ble Supreme Court of India in the case of Bharatsing S/o Gulabsingh Jakad and others v. State of Maharashtra and others (2018) 11 SCC 92 has categorically held that the Collector shall keep the application under section 28-A pending till the appeals against the award of reference court are finally decided as it is settled law that the re-determination can only be sought once that too based on the award passed by the Reference Court and not appellate court, therefore, application under section 28-A of Act of 1894 shall not be decided by the Collector till the pendency of the appeals in the superior courts.

As it is said law favours ones who are vigilant, even in context of pendency of application under section 28A of Act of 1894, the duty is also casted upon the landowner to seek appropriate remedies if the Land Acquisition Collector decided the application under section 28A of Act of 1894 even when appeal was pending against the award of Reference Court. Such land owner can file an application under section 28(3) of Act of 1894 to the Collector, requiring the matter to be sent to Court and in such eventuality provision of the Section 18 would apply and so as the limitation. If the landowner has failed to seek such remedy, at later stage he cannot agitate the LAC should have kept the application pending. This aspect has recently been clarified by the Hon’ble Supreme Court of India in the case of M/s Model Economic Township Ltd. v. Land Acquisition Collector SLP(C) No. 618 of 2018 decided on 26.02.2019.

Therefore, in view of the aforesaid pronouncement by the Hon’ble Supreme Court of India, it is clear beyond any cloud of doubt that once the person who failed to file either application for reference under section 18 of the Act of 1894 or application for re-determination of compensation based on award of Reference Court within the period of limitation provided under the respective provisions, cannot belatedly file such applications and delay cannot be condoned. Once it is the proposition of law, the logical corollary that follows is that such landowner would not be able to claim enhanced compensation even if other landowners would have been granted such benefit as the right of the landowner is time barred.

In such eventuality, a very pertinent question which arises is whether if the petitioner fails to avail statutory remedies for challenging award for seeking enhancement in compensation within limitation; can Article 226 of the Constitution of India be invoked for seeking enhancement in compensation? Since time and again the Hon’ble Supreme Court has emphasised that there is no possibility for condoning delay in filing either application for reference under section 18 of the Act of 1894 or application for redetermination of compensation under section 28A of the Act of 1894, it doesn’t require a second guessing that even the answer to this question is in negative. The Hon’ble Supreme Court of India in the case of State of Karnataka v. Laxuman 2005 (8) SCC 709 while adjudicating upon the application of Section 5 limitation Act in filing application for reference under section 18 of the Act of 1894 held that no writ of mandamus can be issued to entertain such application after the expiry of the limitation.

Therefore, as a sequel of aforesaid discussion it can be clearly concluded that the person who fails to avail the statutory remedies as provided under section 18 or Section 28-A of the Act of 1894 and fails to file either application for reference under section 18 of the Act of 1894 or application for re-determination of compensation based on award of Reference Court within the period of limitation provided under the respective provisions, cannot belatedly file such applications and such delay cannot be condoned and even such enhancement in compensation cannot be sought by invoking Article 226 of the Constitution of India.

]]> https://lawfinderblog.com/sanctity-of-limitation-period-prescribed-under-land-acquisition-act-1894/feed/ 1 https://lawfinderblog.com/the-writs-of-prohibition-and-certiorari-a-comparative-analysis/?utm_source=rss&utm_medium=rss&utm_campaign=the-writs-of-prohibition-and-certiorari-a-comparative-analysis https://lawfinderblog.com/the-writs-of-prohibition-and-certiorari-a-comparative-analysis/#respond Fri, 13 Aug 2021 06:42:54 +0000 https://lawfinderblog.com/?p=4173

The Constitution of India in order to secure and protect the fundamental rights of `we the people of India’ in the form of Article 32 and Article 226 vested the Supreme Court and High Courts respectively with power to issue such directions, orders or writs which are necessary for safeguarding the rights. Five writs finds specific mention in the Constitution namely- Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition. While the purpose of most writs is clear, there has always been a certain amount of uncertainty when it comes to the writs of Prohibition and Certiorari.

In simple terms, a writ of Prohibition is issued by a superior court directing an inferior court to stop doing something that is prohibited in law. On the other hand, a writ of Certiorari is issued in instances where a judicial review of a decision of a lower court is sought to be reviewed by a higher court. Depending on the circumstances of each case, the lines between these two types of writs can blur quite often. Through this article an attempt has been made to bring out the key features of each of these two writs and illustrate and compare the differences between them through help of judicial precedents.

Writ of Prohibition

The origin of the writ of Prohibition is perhaps as old as the origin of Common Law itself. Issued by a court to an inferior court, it is used to prevent lower courts from overstepping its jurisdiction or authority. This is done in situations where the lower court has yet not rendered its judgement. Many also term it as a `stay order’. The scope of this writ is very narrow as it applies to only very specific cases and only against judicial bodies, and not administrative authorities. It could also be seen as the polar opposite of the writ of mandamus. A writ of mandamus compels some action while the writ of Prohibition mandates certain inactivity. This can be better understood with the help of case laws.

In the case of S. Govinda Menon v. Union of India (AIR 1967 SC 1274), the court held that “the jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds.”

Hence, there are three situation where writ of Prohibition can be issued:

1. Overstepping of jurisdiction

2. Lack of jurisdiction

3. Deviation from the rules of natural justice

The importance of this writ is simple- it prevents any sort of arbitrary action by a court that lacks jurisdiction to adjudicate on a particular matter. It also ensures that the sanctity of the constitutional hierarchy of the courts is maintained. Every court cannot decide on every petition that is presented before it- the writ of prohibition ensures the same is followed. So in every case where there is an absence, or excess or jurisdiction or plainly, a deviation from the rules of natural justice, the writ of prohibition is employed.

The writ of prohibition is issued during the pendency of proceedings and hence is different from various other writs which are issued after the conclusion of court proceedings.

Writ of Certiorari

Literally, the term `Certiorari’ is Latin for “to be made certain/certified”. This writ is used by a superior court (the High Courts and the Supreme Court in India) to quash an order passed by an inferior court or a quasi-judicial body. In the olden times, this writ was mainly used for rectifying errors in a judicial decision and has been derived from various ancient and defunct writs, like the writs of pone, recordari facias, and praecipe.

In the present time, however, and especially in India, the scope of the writ of certiorari is much different from its historical position as its scope has been widened. The writ of certiorari lies against any “judicial act,” committed by anyone. It does not, however, lie against purely executive or ministerial acts. When the Court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal.

In the landmark case of Hari Vishnu Kamath v. Syed Ahmad Ishaque, the court laid down the factors to be considered while issuing a writ of Certiorari. These are as follows:

1. There is an error in jurisdiction. This can happen in any one of the following ways- an inferior court acts on a matter without jurisdiction, it acts in excess of its jurisdiction or it simply fails to exercise its jurisdiction.

2. A writ of certiorari will also be issued when any principles of natural justice are violated.

3. There is a prima facie error of law in the judgement.

At this point, it becomes necessary to point out that the writ of Certiorari is not an appeal. Instead, in this situation, the court acts in a supervisory position. The superior court cannot overreach a decision by an inferior court no matter how erroneous it may be. This is based on the simple premise that a court which has the jurisdiction to hear a matter, has the right to decide both wrong and right. If a superior court re-adjudicates the matter, it will be in violation of the constitutional hierarchy of courts. In the words of Morris, L.J., “It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring order or decision for rehearing of the issue raised in the proceedings. It exists to correct an error of law, where, revealed on the face of an order or decision or irregularity, or absence of, or excess of, the jurisdiction where shown“. So when a writ of certiorari is issued, the idea is not to overturn a judgement passed by a lower court but rather to correct the errors in such judgment without stepping on an inferior court’s authority to adjudicate on a matter.

Difference between the Writs of Prohibition & Certiorari

Now that we have discussed both the writs of Prohibition and Certiorari, let us look at the differences between the two. Through an analysis of the features of the two writs, it can be seen that, both, the writs of prohibition and certiorari have the same object- to restrain inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions.

However, there is one major difference between these two types of writs and this is, that these are issued at different stages of proceedings in a court. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will be issued, forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground for want of jurisdiction. Therefore, a writ of Prohibition is issued during the pendency of court proceedings while a writ of Certiorari is issued once an order has been passed by a court.

There might be a third situation as well. In certain cases, it might happen that in a proceeding before the inferior court a decision might have been passed, which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition-certiorari for quashing what had been decided, and prohibition for arresting the further continuance of the proceeding. Thus, it needs to be analysed at what stage do the proceedings of a case lie to understand which writ should be employed and for what purpose to seek the ends of justice.

This view has been upheld in the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque And Others (AIR 1955 SC 233). The court concluded that a writ of Certiorari should be issued only when a decision has been passed while a writ of Prohibition should be issued in situations where the judgement is still awaited.

In the past, courts have relied on the judgments upheld in Parry & Co v. Commercial Employees’ Association, Veerappa Pillai v. Raman and Raman Ltd, Ebrahim Aboobaker v. Custodian General, and T.C. Basappa v. T. Nagappa to draw the distinction between the writs of prohibition and certiorari.

The scope of Art. 226 of the Constitution is, firstly, that it confers on the High Courts power to issue writs and directions and secondly it defines the limits of that power. This it does by enumerating the powers and limits of the courts and how it should be exercised over any person or authority within the territories in relation to which it exercises its jurisdiction. The emphasis is on the words “within the territory”, and their significance is that the jurisdiction to issue writs is coextensive with the territorial jurisdiction of the court. The reference is not to the nature and composition of the court or tribunal but to the area within which the power could be exercised.

There is one fundamental distinction between a writ of prohibition and a writ of certiorari. A writ of prohibition to a court will lie when the proceedings are to any extent pending and a writ of certiorari for quashing will lie after the proceedings have terminated in a final decision. If a writ of prohibition could be issued only if there are proceedings pending in a court, it must follow that it is incapable of being granted when the court has ceased to exist, because there could be then no proceeding on which it could operate. But it is otherwise with a writ of certiorari to quash, because it is directed against a decision which has been rendered by a Court or tribunal, and the continued existence of that court or tribunal is not a condition of its decision being annulled.

In the case of Bengal Immunity Co. v. State of Bihar, the Supreme Court has also deliberated on the nature of these writs as remedies. It was observed that the existence of an alternative remedy, that is adequate and equally effective remedy may be a matter that can be taken into consideration by the High Court in granting the writ. It is a writ of right not a discretionary writ and the nature of writ of prohibition is much of corrective one rather than preventive. Presence of an alternate remedy does not impose an absolute bar on issuing writ of prohibition. But the presence of an alternate remedy will be more relevant in the context of certiorari.

Therefore, it can be seen that a writ of prohibition is issued to prevent an inferior court or tribunal from adjudicating on a matter in which it has assumed excess of jurisdiction while a writ of certiorari is issued to quash the order passed by an inferior court or tribunal in excess of jurisdiction. The writ of prohibition is nugatory in nature. It prevents or prohibits the inferior court from exercising assuming jurisdiction which is not vested in it by law. Writ of prohibition lies for both excess and absence of jurisdiction. However, both are an important part of the writ jurisdictions of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution of India, respectively.

Thus, it can be seen that the object of the writ of prohibition is prevention rather than cure, while certiorari is used as a cure.

Arbitrability of Oppression And Mismanagement Disputes Under Companies Act, 2013

Arbitrability means whether a matter can or cannot be settled through arbitration and whether certain type of disputes only falls under the jurisdiction of a tribunal or the state courts. The Model Law does not specifically elucidate as to which disputes are arbitrable in nature and has left the same to the existing state laws to give specific directions. Though a large number of commercial contracts have an arbitration clause for ease of dispute resolution but this does not mean that all disputes are arbitrable in nature. In this article the arbitrability of disputes concerning oppression and mismanagement in companies has been discussed at length. We will discuss the meaning, significance and scope of arbitrability in a form of dispute that more often than not involves a third party in the form of shareholders who might not be a party of the arbitration agreement.

Oppression and mismanagement have been covered under Sections 241 to 246 of the Companies Act, 2013 (sections 397 and 398 of the Companies Act, 1956 were analogous to sections 241 and 242 of the Companies Act, 2013) which gives powers to the shareholders of any company especially minority share holders to file a petition before NCLT addressing Oppression and Mismanagement. Section 241(a) defines Oppression as “the affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the interests of the company.” Section 241(b) defines Mismanagement as “the material change, not being a change brought about by, or in the interests of, any creditors, including debenture holders or any class of shareholders of the company, has taken place in the management or control of the company, whether by an alteration in the Board of Directors, or manager, or in the ownership of the company’s shares, or if it has no share capital, in its membership, or in any other manner whatsoever, and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to its interests or its members or any class of members.”

Sections 241 and 242 of the Companies Act, 2013 provides that National Company Law Tribunal (NCLT) which was earlier known as Company Law Board under the Companies Act, 1956; is the governing authority for all disputes that are related to oppression and mismanagement. NCLT has the power to provide a wide range of reliefs in these types of cases. But it has to be noted that nowhere it has been written that such cases cannot go for arbitration. If an arbitration clause is present in an agreement between the concerned parties, then on the face of it the case can be referred for arbitration. This position is supported by section 244 of the Companies Act, 2013 and sections 8 and 45 of the Arbitration and Conciliation Act, 1996. On the other hand, it can be reasoned that two statutory bodies cannot hear the same dispute and that NCLT has been vested with the statutory authority under the Companies Act, 2013.

Section 8 of the Arbitration and Conciliation Act, 1996 states that “(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

It is clearly stated that a dispute need not be arbitrable as a prerequisite to be considered for arbitration and due to this reason, there has been much debate about the arbitrability dispute concerning oppression and mismanagement in a company. General rules about the `arbitrability’ of a dispute have been laid down in various judgments but authorities generally tends to refer to Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 which lays down the distinction between the arbitrability of rights in personam^[1*] and rights in rem^[2*]. The court, in this case, had relied on the case of Haryana Telecom v. Sterlite, 1990 (97) CompCas 675 (P&H) and states that in case of winding up of a company third party rights are involved and thus the same cannot go for arbitration. It has been deemed that those matters concerning the former are arbitrable in nature while the latter is not arbitrable.

[1* Right in personam means the right against a specific person.]

[2* Right in rem means a right against an item of property.]

On the face of it, oppression and mismanagement matters appear to be “right in personam” as they are filed by the oppressed shareholders of a company and such matters also arise from activities that are against public interest which cannot be waived by contractual provisions. Thus, such matters are usually sent to NCLT and not an arbitral tribunal.

The position about the arbitrability of such disputes was finally settled in the case of Rakesh Malhotra v. Rajinder Malhotra, 2014 SCC Online Bom 1146. In this case, the Bombay High Court held that considering the special powers that have been made available to the Company Law Board (now known as NCLT) under section 402 of the Companies Act, 1956 (now available under section 241 under Companies Act, 2013) have not been provided to an arbitral tribunal. Thus, it was held that disputes pertaining to such matters as mentioned under sections 241 and 242 of the Companies Act, 2013 cannot be referred for arbitration. This judgment has been instrumental in providing much-needed clarity in dealing with these matters and has provided general principles for the judiciary to deal with them.

The Tribunal has the right to adjudicate certain kinds of proceedings as a matter of public policy and due to this reason cases relating the right in rem cannot be referred for arbitration as they also affect third-party rights. However, if the disputes pertaining to the right in personam then, the case can be referred for arbitration, especially if the agreement between both the parties has an arbitration clause. Due to these principles, the courts have adopted a fact-based approach in oppression and mismanagement disputes to decide whether a particular case can be referred for arbitration or not. In these cases, the main issue is the commonality of the parties and whether any third party is involved. This issued in regard to a civil suit has been settled in the landmark judgement of Sukanya Holdings (p) Ltd. v. Jayesh H. Pandya, (2003) 5 SCC 531 by the Supreme Court. The court had observed that if a few involved parties were bound by an arbitral agreement and other were not, then the case cannot be referred for arbitration.

The Bombay High Court in the case of Rakesh Malhotra clubbed all these propositions and held that:

“It must therefore follow that where a petition under Chapter VI of the Companies Act, 1956 seeks reliefs some of which are in the nature of reliefs in rem and others that are in personam, then it is not possible or permissible to sever one from the other and disassemble such a petition…. Haryana Telecom, to my mind, though in a petition for winding up, and clearly, therefore, a matter in rem, states as a proposition that no agreement between the parties can vest an arbitral panel with the power of winding up. Similarly, no arbitration agreement can vest an arbitral tribunal with the powers to grant the kind of reliefs against oppression and mismanagement that the CLB might.”

Although, disputes under sections 241 and 242 are not arbitrable but that does not bar the court from accepting an application for the same under sections 8 and 45 of the Arbitration and Conciliation Act, 1996. Courts have time and again warned through judgments against the implication of unnecessary parties in order to avoid arbitration. It has been vehemently established that in such cases the application shall be liable to be dismissed and the case could be referred for arbitration. The courts have held that if clever drafting has been used to hide away the true substance of the case and it is the duty of the court the unveil the true matter at hand and take appropriate action.

In this regard, the court in Rakesh Malhotra held:

“a petition that is merely `dressed up’ and seeks, in the guise of an oppression and mismanagement petition, to oust an arbitration clause, or a petition that is itself vexatious, oppressive, mala fide (or, at any rate, not bona fide) cannot be permitted to succeed. In assessing an allegation of `dressing up’, the Section 397 and 398 of the Companies Act, 1956 petition must be read as a whole, including its grounds and the reliefs sought.”

Under this sole exception to the rule, the applicant has to establish that the petition which has been filed under sections 241 and 242 is `mala fide’ `vexatious’ or `dressed up’ with the objective of circumventing the arbitration clause. But the issue here is that the court has not given any proper definition of what will be considered as mala fide, vexatious or dressing up and would require a clear interpretation.

Thus, the Rakesh Malhotra judgment has per se given us with the general rules that shall be used in these kinds of disputes. It has also set it out that these matters shall not be arbitrable in nature except for the exception that has been mentioned above. But saying that these disputes are not at all arbitrable shall be an overstatement. If disputes of such nature arise due to breach of the shareholders agreement or a joint venture agreement and a specific relief has not been sought under section 242, then the case can go for arbitration if they have an arbitration agreement in existence. But we have to keep in mind other provisions of the Companies Act, 2013 that has a direct impact on the situation.

Even section 430 of the Companies Act, 2013, gives exclusive jurisdiction to NCLT/NCLAT (National Company Law Appellate Tribunal) to the exclusion of the civil courts to adjudicate any matters that pertain to oppression and mismanagement claims under the act. NCLT has extraordinary jurisdiction to issue orders that concern to the regulation of the company’s internal affairs, any change in management, proper function of the directors etc., whereas the arbitral tribunal can adjudicate on limited terms of any such contract^[3*]. Under the Arbitration Act, 1996 there is no provision that clearly defines the powers of an arbitral tribunal. But Indian courts have time and again given powers to the arbitral tribunal to adjudicate in various civil and commercial matters whether they were contractual or non-contractual in nature.

[3* Jugnar Processors (P) Ltd. v. Rohtas Jugalkishore Gupta, 2014 SCC Online CLB 160.]

But it can be clearly said that circumstances under which these disputes can go for arbitration are very specific in nature and have to be read with great depth and understanding with the prevailing principles that have been established by the courts.

The Covid-19 Pandemic has changed the dynamics of the world. As people are increasingly being confined to the safety of their homes, there are certain professionals who have had to step up to the challenge. One such community is that of medical professionals. Ever since the Covid-19 pandemic hit, doctors around the world have had to work round the clock. This is especially true for a country like India where healthcare facilities are less developed in comparison to other countries. While India achieved the WHO recommended doctor-patient ratio in 2017, the 1.34 doctor for 1,000 Indians ratio is still on the lower end of the spectrum. As a result, the healthcare facilities in the country have reached a breaking point, especially during the second wave of the Pandemic where record 4 lakh plus cases were being consistently reported at the peak. With rampant shortage in medical facilities and medicines, the mortality rate also shot up which caused the public anger to spill over and incidents of widespread violence against medical professionals also came to the fore.

There are various regulations and legislations that lay down the responsibilities of the healthcare workers towards their patients. These include the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002 and even the recently amended Consumer Protection Act, 2019. The former lays down under various sections the duties of the medical professionals to provide medical treatment to the sick, to not arbitrarily refuse treatment and even create awareness among the members of the society regarding issues of public health. While these regulations illustrate the responsibilities of the medical professionals, there are not enough safeguards to protect them in situations of violence by patients, their families or the society at large.

Though violence against medical professionals isn’t uncommon, it has garnered more media attention in light of the current situation. The governments since long have not promulgated any enactment to offer protection to this group. However, given the extraordinary health emergency that the country faces, the archaic Epidemic Diseases Act, 1897 has been employed by making certain amendments via the Epidemic Diseases (Amendment) Act, 2020, to give a certain level of protection to the medical fraternity.

Section 3[1A(a)] of the Act defines what constitutes an “Act of violence” against a healthcare service professional. This includes harassment which may impact the living or working conditions of such healthcare service personnel and preventing him from discharging his duties. It also includes any harm, injury, hurt, intimidation or danger to the life of such healthcare service personnel, either within the premises of a clinical establishment or otherwise. Any obstruction or hindrance to such healthcare service personnel in the discharge of his duties, either within the premises of a clinical establishment or otherwise also amounts to an act of violence. And any loss or damage to any property or documents in the custody of, or in relation to, such healthcare service personnel is also covered under the ambit of this definition.

Section 6 of the Act also lays down the punishment for such acts of violence. It reads that “whoever commits or abets the commission of an act of violence against a healthcare service personnel; or abets or causes damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.” In situations where the act of violence is such that it causes grievous hurt to a healthcare professional as defined in section 320 of the Indian Penal Code to such person, the punishment is “imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.“.

Generally speaking, the Indian Penal Code, 1860 (IPC) has various provisions, especially Sections 323, 325, 352, 506, which could be employed to deal with instances of violence. Further, the Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Acts or the MSPMSI Acts has also been enacted in several states of the country. However, it has been argued by various groups including the government and medical professionals that a specific legislation is necessary to provide protection to the healthcare workers.

But the question arises, how reasonable is this immunity, insofar, to situations where there is a prima facie case of medical negligence. Further, there is a scope of this Act being arbitrary since Section 3(3) of the Act mandates that the Court shall presume the existence of a culpable mental state which is a deviation from the standard presumption of innocence, until proven guilty. What is noteworthy is that the Amendment Act is based on a parent Act which is more than two centuries old and various provisions of the Act are insufficient to address the issues of the contemporary medical professionals and patients. For instance, the Act does not provide for recourse in situations of a global pandemic. The global connectivity then and today, levels of migration, greater occupation of individuals on per capita of land are some important issues that the Act is ill equipped to deal with. It is no wonder why even the Indian Medical Association has written to the Union Home Minister underlining the need for “a uniform, effective and comprehensive law against healthcare violence“.

In light of the same, the Indian judiciary has risen to the occasion and various courts have elaborated on various factors that must be taken into consideration while deciding on such cases of violence against healthcare professionals. For instance, in the case of Abdul Naser v. State of Kerala (2016 (1) KLT 168), the High Court of Kerala has dealt comprehensively with the question of anticipatory bail to the accused in such situations. The court laid down that three factors must be considered while deciding the question of anticipatory bail. These are:

1. The nature and gravity of the injury, if any, sustained by the doctor/hospital employee.

2. The extent of damage, if any, caused to the property.

3. The circumstances under which the acts of violence were committed.

The last factor again highlights that there might be mitigating factors when it comes to incidents of violence as medical negligence in certain situations can also not be ruled out. Therefore, an Act which presumes the guilt of the accused from the outset becomes highly problematic. For instance, there have been reports of medical staff not following the safety protocols in some hospitals across the country. If such a situation leads to the death or deterioration in health of a patient, medical negligence could be established. But owing to the overwhelming pressure on the medical infrastructure of the country, a healthcare professional may misuse the immunity to shirk their responsibility. Further, instances of overcharging and even sexual assaults of Covid-19 patients are rampant which has led to an escalation in instances of violence against such professionals which makes a strong case for an urgent need in rethinking the legal immunity.

Thus, one can reasonably infer that the present legislation is ineffective in both, protecting the healthcare professionals who are working against all odds in treating the patients and also securing the right to healthcare of individuals who may be victimised because of certain individuals engaging in unfair practices. In such a situation, courts across the nation have taken this matter seriously and passed various guidelines to ensure protection to both the sections of the society.

In the case of Jerryl Banait v. Union of India (2020 SCC Online SC 357), the Supreme Court dealt with a matter wherein the doctors who had gone to screen certain patients were attacked and faced stone-pelting. The Court observed and directed: “The pandemic which is engulfing the entire country is a national calamity. In wake of calamity of such nature all citizens of the country have to act in a responsible manner to extend helping hand to the government and medical staff to perform their duties to contain and combat the COVID-19. The incidents as noted above are bound to instill a sense of insecurity in Doctors and medical staff from whom it is expected by the society that they looking to the call of their duties will protect citizenry from disease of COVID-19. It is the duty of the State and the Police Administration to provide necessary security at all places where patients who have been diagnosed coronavirus positive or who have been quarantined are housed.”

The court has made similar observations in various other cases reiterating the position that the present legislation is ineffective in addressing the concerns of all affected parties. What is needed is a balanced approach that takes into consideration all important issues and tries to address them comprehensively at legal, sociological and academic levels. Protecting the doctors and the healthcare workers is not the responsibility of the governments alone but also of the hospital administrations where they work. For instance, the WHO along with the ILO, ICN and Public Service International, has come up with Framework Guidelines to address the issues of workplace violence in the healthcare sector. It lays down that it is the responsibility of hospitals and other healthcare institutions that their employees work in a safe environment. To ensure this, the employers must regularly undertake threat assessment, eliminate all possible risks by developing policies and programs that ensure health and safety of such workers. Various contingency plans should also be put into place in case of any incident of violence along with proper reporting mechanisms and counselling services.

Since the violence against health professionals is a wider public issue, an attempt must also be made to create awareness amongst the public at large regarding the various challenges the medical fraternity faces, especially during these unprecedented times.

In many situations, it was observed that the unavailability of medical infrastructure was the cause behind ineffective medical care provided to a patient. The lack of oxygen support, unavailability of hospital beds or medicines is not a deficiency in service by a professional but rather an implication of the underdeveloped medical infrastructure of the country. Violence against the medical professionals of the country, as a result, will bring down the morale of these “Corona warriors” and may even discourage young medical professionals from joining this noble profession. At this juncture, it is important to mention that it is the duty of the government to ensure that medical supplies are readily available at this critical moment in time. This will help ensure adequate medical care to the patients and can also significantly reduce cases of violence against the members of the medical fraternity.

Thus, one can see that there are various reasons for violence against healthcare professionals including lack of medical facilities, medical negligence and sometimes, even the inability of the general public in understanding the challenges being faced by them. While there are various Regulations that elaborate on the responsibilities of the doctors and other medical staff, the legislations relating to safeguards of these professionals are highly ineffective as they rely on a two hundred years old legislation as a guiding light. This, combined with the general ignorance and apathy towards the medical staff of the country has led to instances where the professionals have been beaten up, or worse, killed. The mounting pressure on the medical professionals coupled with inadequate infrastructure and looming threat of violence can spell doom in the nation’s fight against the Covid-19 pandemic. What is needed is a zero tolerance approach towards this barbarism while ensuring adequate healthcare facilities and treatment is available to every citizen of this country which can be achieved only with the active participation of all the stakeholders of the nation and by framing new legislations that are adept to deal with the issues faced by medical professionals in the contemporary world.

The concept of Res Judicata finds its evolvement from the English Common Law system, being derived from the overriding concept of judicial economy, consistency, and finality. From the common law, it got included in the Code of Civil Procedure, 1908 in the form of section 11 and which was later as a whole was adopted by the Indian legal system. The latin phrase “Res Judicata” literally means “a matter adjudged” or a “dispute decided.” This theory contemplates that if either of the parties in a case approaches the same court for the judgment on the same issue then the suit will be barred by the doctrine of res judicata. The principle is also founded on justice, equity and good conscience which require that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue.

The provisions of section 11 of C.P.C., 1908 are mandatory and not directory and the onus of proof lies on the party relying on the theory of Res Judicata.

PREREQUISITES FOR APPLICABILITY

• The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

• The former suit must have been a suit between the same parties or between parties under whom they or any of them claim.

• Such parties must have been litigating under the same title in the former suit. The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.

• The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.

CONSTRUCTIVE RES JUDICATA

The rule of constructive res judicata in section 11 the Civil Procedure Code, 1908 is an artificial form of res judicata. It provides that if a plea has been taken by a party in a proceeding between him and the defendant then the former shall not be permitted to take pleas against the same party in the following proceeding with reference to the same matter. It is opposed to public policies on which the principle of res judicata is based. It would mean harassment and hardship to the defendant. The rule of constructive res judicata helps in raising the bar. Hence this rule is known as the rule of constructive res judicata which in reality is an aspect of augmentation of the general principles of res judicata.

In the case of State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680, M was a sub-inspector and was dismissed from the service of D.I.G. He challenged the order of dismissal by filing a writ petition in the High Court. He said that he did not get a reasonable opportunity of being heard before the passing of the order. However, the argument was negatived and the petition was dismissed. He again filed a petition on the ground that he was appointed by the I.G.P. and had no power to dismiss him. The defendant argued that the suit was barred by constructive res judicata. However, the trial court, the first appellate court as well as the High Court held that the suit was not barred by the doctrine of res judicata. The Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff, M and he could have taken this argument in his earlier suit.

CASE LAW ANALYSIS

In the historic case of Daryao v. State of Uttar Pradesh, 1962 SCR (1) 574, the doctrine of res judicata is of universal application was established. The Supreme Court of India placed the doctrine of res judicata on a broader foundation. In this case, petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution of India and the same was dismissed. Then they filed independent petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. The respondents raised an objection regarding the petition by asserting that the prior decision of the High Court would operate as res judicata to a petition under Article 32 and the Supreme Court dismissed and disagreed with the petitions.

The court held that the rule of res judicata applies to a petition under Article 32 of the Constitution as well. If a petition is filed by the petitioner in the High Court under Article 226 of the Constitution and it is dismissed on merits, it would be operated as res judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution.

EXCEPTIONS – WHERE THE RES JUDICATA DOESN’T APPLY

There are limited exceptions to Res Judicata that allow a party to attack the validity of the original judgment, even outside of appeals. These exceptions – usually called collateral attacks – are typically based on procedural or jurisdictional issues, based not on the wisdom of the earlier court’s decision but its authority or competence to issue it.

• It should be noted that the principle of res judicata and constructive res judicata are held not applicable in Habeas Corpus Petition as held by Supreme Court in Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 and in Lallubhai v. Union of India, AIR 1981 SC 728.

• The judgment in a former suit can be avoided only by taking recourse to Section 44 of the Indian Evidence Act on the ground of fraud or collusion. In the case of Beliram and Brothers v. Chaudari Mohammed Afzal, it was held that where a minors suit was not brought by the guardian of the minors bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of the Indian Evidence Act, 1872, s. 44 and does not operate Res Judicata. The principle of Res Judicata in Code of Civil Procedure, 1908, s. 11 is modified by the Indian Evidence Act, 1872, s. 44 and the principles will not apply if any of the three grounds mentioned in s. 44 exists.

• Res Judicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit. Appeals are considered the appropriate manner for challenging a judgment rather than trying to start a new trial. And once the appeals process is exhausted or waived, Res Judicata will apply even to a judgment that is contrary to law.

RES JUDICATA VIS-A-VIS PUBLIC INTEREST LITIGATION

The principle of Res Judicata does not apply strictly to public interest litigations. The procedural laws are not fully applicable to public interest litigation cases. Where the prior public interest litigation relates to illegal mining, subsequent public interest litigation to protect environment is not barred.

In Rural Litigation and Entitlement Kendra v. State of U.P., 1985 SCR (3) 169, It was held on this aspect:

The writ petitions before us are not inter-party disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defense when a matter of grave public importance is for consideration before the court.

PROCEEDINGS WHERE RES JUDICATA IS NOT APPLICABLE ARE:

• A decision or direction in an interlocutory proceeding of the type as provided under Order IX Rule 7 does not operate as Res Judicata so as to bar the hearing on merits of an application under Order IX Rule 13.

• Taxation matters

• Res Judicata is not applicable to cases of habeas corpus petitions.

• Dismissal of suit in default

• Dismissal in limine

• Dismissal of Special Leave Petition in limine by a non speaking order

• Compromise decree, though party is precluded from challenging it by rule of estoppels.

• Fraudulent decree

• In case of change in circumstances

• Change in law subsequent to a decision rendered by the Court.

• Cases decided on the plea of res judicata can be re-litigated.

• Public Interest Litigation.

• In the case of K.V. George v. Secretary to Govt., 1989 SCR Supl. (1) 398, the court held 6 that plea of Res Judicata cannot be raised in the cases of Arbitration and Rewards.

• The doctrine of Res Judicata is not applied in the income tax proceedings. –In the case of B.S.N.L. v. Union of India, the court held that the decision given for one Assessment year does not operate as res judicata in the Subsequent year.

DISTINCTION BETWEEN CONSTRUCTIVE RES-JUDICATA & ORDER II RULE 2 of CPC, 1908

Constructive Res-Judicata and Order II Rule 2 of the Code of Civil Procedure In Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141, Supreme Court observed that Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established; more particularly where the bar sought is on the basis of constructive res judicata. The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order II Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.

Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order II Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed. In Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra, 1990 (2) SCC 715, a Constitution Bench of this Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat Mandal, 1986 (1) SCC 100 thus: “an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence.”

RES JUDICATA AND RES SUBJUDICE

The doctrine of res judicata and res subjudice varies in some factors –

• Res sub judice applies to a matter that is pending trial whereas res judicata applies to a matter adjudicated or arbitrated.

• Res sub judice prohibits the trial of a suit that is pending decision in a previous suit whereas res judicata prohibits the trial of a suit that has been decided in a former suit.

CONCLUSION

Res Judicata is a concept which is prevalent in all the Jurisdictions of the world. The principle of res judicata seeks to promote honesty and fair administration of justice and to prevent abuse of process of law. The Doctrine of Res Judicata can be understood as something which restrains the either party to move the clock back after the final conclusion of proceedings.

“Dynamics of Employment changes and mutates after formulation of a new policy but dictated by the dictum of Hon’ble Courts”

– Ankur Mittal, Advocate

The concept of Regularisation of services is a means to condone any procedural irregularity and is meant to cure only such defects which are attributable to notions followed while making appointments. Regularisation and permanence in employments/appointments are mutually exclusive concepts and, thus cannot be equated on the same pedestal. But it is a well settled law that Regularisation is not a mode of appointment and it can be done on the basis of instructions/circulars/policies as per the observations of Hon’ble Supreme Court in the case of State of Mysore v. S.B. Narayanappa, 1967 SCR 128 as well as R.N. Nanjundappa v. T. Thimmiah and Ors., 1972 SLR 1994.

The service rules governing the service conditions of the government employees provides for three modes of recruitment, first by way of direct recruitment, other by way of promotion and third one by way of deputation or by way of transfer from one department to another department or from the boards and corporations and vice versa. The mode and method of recruitment is provided by the service rules of the concerned departments, however how the direct recruitment is to be effected, has not been mentioned in the statutory service rules enacted by the government under the proviso to Article 309 of the Constitution of India. The State Governments with a view to adopt uniform mode and method for direct recruitment usually classify the employees in various groups and has constituted Staff Selection Commission and Public Service Commission, to device and carry the selection process by issuance of public advertisement on the basis of the requisition sent by the different government departments.

The recruitment process is often delayed on various counts, the foremost reasons being challenge to the advertisement or the criteria adopted for selection. The delay in the selection process ultimate leads to delay in the appointment of requisite regular manpower in the department sending the requisition. In order to overcome such situations, Government issues executive instructions either by invoking Article 162 of the Constitution of India or the proviso to Article 309 of the Constitution of India thereby, authorising the Head of the departments to make adhoc arrangements generally for a period of 6 months or till the time regularly selected candidates joins, whichever is earlier. These adhoc appointments then are extended from time to time on account of non-recruitment of candidates to be selected after following proper recruitment procedures. The adhoc arrangement sometimes continue for years altogether on account of delay in the recruitment of regular candidates.

Since the employees are recruited only on ad hoc basis, the person so recruited may or may not possess the requisite qualification prescribed in the service rules and In this process many a times, adhoc appointee become overage, to participate in the recruitment process. Thus, to remove these irregularities, regularisation policies are framed by the Government by issuing administrative instructions under Article 162 of Constitution of India wherein such candidates who are working either on contract or daily wage or adhoc basis against the sanctioned posts which were initially recruited, are taken out of the purview of the recruitment agency and upon completion of specified number of years upto a particular cut-off date, services of such adhoc/contractual/daily wages employees are regularised subject to certain terms and conditions.

Though the practice of engaging the employees on temporary basis and after some time regularising their services has been held bad in law, yet more often the government departments allow to continue the daily wage/contract/adhoc appointees and the recent trends have seen that the government tendency to recruit on contractual basis has increased manifold in the past few years. As has also been discussed above, that one of the reasons for resorting to the adhoc employment is requirement of manpower, however certain other factors such as lesser financial burden, easy hire and fire also contributes to the tendency of the government to appoint employees on contractual basis.

The adhoc/contract/daily wage employees are generally paid less wages or only the minimum of the regular pay scale as against the salary and other allowances that are paid to the regular government employees such as HRA/DA/fixed medical allowance, LTC, pension. The expenses saved on these accounts are treated as earned revenue and appears to be more economical, despite it all being contrary to the concept of Welfare State. It is pertinent to mention that the Hon’ble Supreme Court came to the rescue of such daily wager/contractual/ad hoc employees while deciding State of Punjab v. Jagjit Singh, Civil Appeal No. 213 of 2013 reported as (2016) 4 SCC 641, wherein the Hon’ble Court ordered to pay the wages equivalent to minimum regular pay scale to such employees. The financial burden on the government is further curtailed by way of such appointments as the government is saved from implementing the recommendations of the pay commission as far as these adhoc/contract/daily wages/work charged employees are concerned as they are precluded from such benefit and only regular employees are conferred the benefit of due and drawn amount of arrears on account of arising on implementation of the pay revision commission.

Apart from the above, from time to time, government also considers that it is easy to hire and fire the daily wage/contractual/adhoc/work charge employees as compared to the regular staff who are being governed by the specific rules and regulations and enjoy the protection of article 311 of the Constitution of India, as the removal of the regular employees, is cumbersome and the procedure takes years to conclude and ultimately, majority of cases fall flat on account of sympathetic attitude of co-employee as well as of disciplinary authority.

As it is said that each coin has two sides, like wise with the adhoc employment which is continued for years altogether, that too in the government sector, often leads to the rising expectation of employees to get the status of regular employee and to enjoy the benefits that are available to them. It is where the regularisation policies comes into pictures, though primarily such policies appears to be driven by the humanitarian considerations and sympathy taking into account the length of service, however more often, the political considerations also plays major role in formulation of such policies. The system of adhocism is not only in violation of the Constitutional Provisions which provides for a legal framework for proper recruitment and removal of the government employees, besides giving them protection and benefits during their service tenure, but such system is also prejudicial to the public at large for the appointees more often do not possess the required qualifications and thus the quality of the services on the government side is compromised. Also, the system of ad hocism has lead to the economical exploitation of the persons who are appointed on contractual basis as they are deprived of the regular pay scales and the benefits that are available to the regular employees.

Even the Judiciary has failed to take serious note of this repeated regularisation policies in its true perspective. No doubt for the last many decades the Hon’ble High Court as well as Hon’ble Supreme Court has deprecated the regularisation policies formulated from time to time, however at the same time more often the Courts has left it to the government to take decision on further course of action and to decide the fate of such employees. And ultimately, the situation remains unchanged on account of government’s repeated tendency to resort to adhocism and the Courts tendency to refrain from interfering in the policy matters.

It would be no gainsaying that for the first time there seem a ray of hope, when the Hon’ble Supreme Court in State of Karnataka v. Umadevi 2006 (4) SCC 1, though recognised the right of the government to recruit the employees on temporary basis, however at the same time cautioned that such engagements cannot be resorted to defeat the very scheme of public employment. The Hon’ble Court observed that the consideration of equity in such cases has only limited role to play and cautioned the courts as well that approving such acts on basis of sentiments and sympathetic approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment and would also deprive many of their opportunity to compete for public employment. While discussing the law regarding regularisation in detail, the Hon’ble Supreme Court directed the Central and State Governments to take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and further directed then to ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. However, even today the governments are formulating regularisation policies and the Courts are granting the benefits of regularisation on the parity basis.

It has been consistent proposition of law Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily. Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. It contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts and accordingly the entire process of recruitment for services is controlled by detailed procedures which specify the necessary qualifications, the mode of appointment, etc. Therefore, once the rules have been framed the appointments shall be made in accordance with such rules only. No government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.

Resorting to the regularization policies is in clear violation of the Constitutional Scheme and further the issuance of mandamus by Courts to regularize the service of employees amounts to perpetuation of illegality and further is in contradiction to the positive concept of equality under Article 14 of the Constitution of India. It is a settled law that the fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularised in the past, is not the ground on which regularisation shall be granted. If illegality has been committed in the past, then such illegality cannot be allowed to perpetuate. Article 14 has a positive concept. No equality can be claimed in illegality. Article 14 has no application or justification to legitimise an illegal and illegitimate action. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the doctrine of equality in case of persons similarly situated, however, if some persons derived benefit by illegality and had escaped from the clutches of law, similarly placed persons cannot plead, nor can the court countenance that benefit had from infraction of law and must be allowed to be retained.

It is thus high time that the government needs to revisit its policies of resorting to the adhoc or temporary employments and the regularization of the employees and further the Courts shall also adopt a pragmatic approach while exercising its power under Article 226 and shall endeavor to give full effect to the law laid down by the Hon’ble Constitution Bench in Umadevi’s case (supra), wherein the Hon’ble Supreme Court has in unequivocal words has cautioned the government as well as courts to not make the Regularization as one of the mode of recruiting the employees in defiance of all rules and constitutional scheme.

Note: The author is the practicing Advocate at the Hon’ble Punjaband Haryana High Court, he is enthusiastic about law and every legal developments. He strives to gain knowledge and expand the horizons of his knowledge over constructive discussions. It is crucial to note that the view expressed in the above said Article are his personal views and not intended to discard any well settled principles of law.

INTRODUCTION

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.

–Martin Luther King, Jr.

The term `minor’ originated from French term `minuere’ which translates to `smaller or lesser’. In India, there are dozen of statutes which deals with the law related to minors, namely, Indian Majority Act, 1875; Indian Contract Act, 1872; Prohibition of Child Marriage Act, 2006; POCSO Act, 2012; Juvenile Justice Act, 2015; personal laws; etc. but the inconsistencies in the age of minority created by these statutes have given rise to the question as to who is actually a minor in India?

The concept of `minor’ was discussed at length in the domain of contractual law in the case Mohori Bibi v. Dharmodas Ghose, (1903) ILR 30 Cal. 539(PC) and gained momentum with the trial in the Delhi Gang Rape Incident<sup>[1*]</sup> which lead to the `Criminal Law Amendment in the year of 2013, thereby, amending Indian Penal Code, 1860; Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 on the laws related to sexual offences & proceeding with the children in conflict with law between the age of 16-18 years engaged in heinous crimes to be treated and tried as an adult and, further, on different dimension, in the case Independent Thought v. Union of India, AIR 2017 SC 4904, where the Hon’ble Supreme Court read down Exception 2 to Section 375 of IPC, 1860 that allowed the husband of a girl child, between fifteen and eighteen years of age the right to have intercourse with her, irrespective of her consent.

[1* State Through Reference v. Ram Singh & Ors. Death Sentence Reference No.6/2013]

There is versatility in the nomenclature which is used to refer to the world minor, namely, child, juvenile, child in conflict with law, doli incapax, ward, adolescent, etc. Every term has its own significance and used in different context in different statutes. The age of minor is not only different in different statutes but it also differs according to the gender. This leads us to the question, “who is actually a minor is India?”

DEFINING THE TERM `MINOR’

■ United Nations Convention on Rights of the Child, 1989 (UNCRC) provides, “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”

This gives the various countries, the freedom to fix the age limit in determining that who is a child.

Definitions in India–

1. Section- 11 of Indian Contract Act, 1872, a minor is a person who has not attained the age of 18 years.

2. The age of majority of a person as per section 3 of the Indian Majority Act, 1875, person is deemed to have attained the age of majority when he completes the age of 18 years, except in the following cases a person continues to be a minor until he completes the age of 21 years-

i. Where a guardian of a minor’s person or property has been appointed under the Guardians and Wards Act, 1890 or

ii. Where the superintendence of a minor’s property is assumed by a Court of Wards.

3. Concept of Doli Capax & Doli Incapax–

i. Section 82 of Indian Penal Code, 1860 (IPC), nothing is an offence which is done by a child under seven years of age. (Doli Incapax)

ii. Section 83 of Indian Penal Code, 1860 (IPC), nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. (Doli Capax– if child have attained sufficient maturity).

4. Other Provisions of IPC, 1860–

i. Section 89 of IPC, 1860 provides the protection to the people for the action taken in good faith for the benefit of a person under twelve years of age.

ii. Section 317 of IPC, 1860 makes punishable the action of the father or mother of a child under the age of twelve years, exposing or leaving such child in any place with the intention of wholly abandoning such child.

iii. Section 363 of IPC, 1860 makes the act of kidnapping any minor under sixteen years of age if a male, or under eighteen years of age if a female punishable.

iv. Section 369, IPC, 1860 makes the act of kidnapping or abducting any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child.

v. To ensure that children are not kidnapped for the purpose for begging, section 363A of IPC, 1860 provides provision against such kidnapping or maiming a minor for purposes of begging is a criminal offense under IPC, 1860.

Sec. 363A(4)(b) provides- `minor’ means–

(i) in the case of a male, a person under sixteen years of age; and

(ii) in the case of a female, a person under eighteen years of age.

vi. Section 366 A of IPC, 1860 makes kindnapping for the purpose of illicit intercourse by inducing any minor girl under the age of eighteen years a punishable offence.

vii. Section 372 & 373 of IPC, 1860 makes the use of any person under the age of eighteen years, for the purpose of prostitution or illicit intercourse, a punishable offence.

5. Protection of Children from Sexual Offences (POCSO) Act, 2012, Section-2 (1) (d) “child” means any person below the age of 18 years.

But there is a difference of age of child, when the child is the victim of sexual offences, under section- 4 of the Act. It provides-

Sec-4. Punishment for penetrative sexual assault.–

(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.

This way two categories of child victims are created-

i. Child below the age of sixteen years, and

ii. Child between the age of sixteen and eighteen years.

6. Information Technology Act, 2000, Explanation of section – 67B, children means a person who has not completed the age of 18 years.

7. Prohibition of Child Marriage Act, 2006, makes child marriage punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Sec-2 (a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.

8. Special Marriage Act, 1954 & Hindu Marriage Act, 1955, conditions of valid marriage– the male has completed the age of twenty-one years and the female the age of eighteen years.

9. Minor in Muslim Law– In Muslim law a person is said to be minor if he or she has not attained the age of puberty. The age of puberty is 15 years for marriage, dower and divorce. For purpose other than marriage, dower and divorce, the age of majority is governed by the Indian Majority Act, 1875. For filling a suit in a court of law, the minimum age is eighteen years even if the suit may relate to marriage, dower and divorce. A minor can not file any suit relating to his marriage without the `next friend’.

10. Guardianship and Wards Act, 1890, section 4(1) “minor” means a person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority.

Section 4 (3) “ward” means a minor for whose person or property, or both, there is a guardian.

11. Hindu Adoption and Maintenance Act, 1956, section 3 (c) “minor” means a person who has not completed his or her age of eighteen years.

12. Age of majority in other religions:

■ In Judaism, a male becomes an adult at age of 13 years and a female becomes an adult at age of 12 years.

■ In the Roman Catholic Church, a person is considered an adult at the age of 18 years.

13. The Plantation Labour Act, 1951 has separate definitions for child, adolescent and adult.

i. `Child’ means a person who has not completed his fourteenth year.

ii. `Adolescent’ means a person who has completed his fourteenth year but has not completed his eighteenth year.

iii. `Adult’ means a person who has completed his eighteenth year.

14. The Juvenile Justice (Care and Protection of Children) Act, 2015, provides for strengthened provisions for both children in need of care and protection and children in conflict with law. There is a change in nomenclature from `juvenile’ to `child’ or `child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”.

i. Section 2(12) “child” means a person who has not completed eighteen years of age.

ii. Under Section 15, special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children’s Court (Court of Session) after conducting preliminary assessment. Besides this, the provisions provide for placing children in a `place of safety’ both during and after the trial till they attain the age of 21 years after which an evaluation of the child shall be conducted by the Children’s Court. Afterwards, the child is either released on probation and if the child is not reformed then the child will be sent to a jail for the remaining term. The law will act as a deterrent for child offenders committing heinous offences such as rape and murder and will protect the rights of victim.

15. Section 27 of The Code of Criminal Procedure (CrPC), 1973 provides for jurisdiction in case of juveniles – If any offense not punishable with death or imprisonment for life, if committed by any person who at the date when he appears or is brought before the court is under the age of sixteen years, may be tried by the court of’ a Chief- Judicial Magistrate, or by any court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of the youthful offenders.

Here, the paradox arises, child under the age of 18 years are dealt under JJ Act, 2015 but at the same time power has been provided to the court of CJM under sec 27 of CrPC, 1973 to deal with the child under the age of 16 years. Moreover, the above mentioned statutes demonstrates that the Indian Legal System has made separate provisions for the minors as the law makers feel is suited to the Indian demography and benefit the young citizens. However, in the larger context, the confusion surrounding the age of who is a child still remains and the perpose for ascertaining the age also remains unfulfilled.

MINOR’S AGE AS PER STATUTES PREVAILING IN THE UNITED KINGDOM

Common Law is the origin of almost every major law in India, thereby, it is crucial to glance over the statutory provisions of the United Kingdom. These are as follows:

Age of Minority

In England, Wales and in Northern Ireland a minor is a person under the age of 18 as per section 1, Family Law Reform Act 1969. In the said statute the age of majority was reduced from 21 to 18 years by amendment^[2*]. In Scotland, this age is 16 years as per section 1, Age of Legal Capacity (Scotland) Act 1991^[3*].

[2* (http://www.legislation.gov.uk/ukpga/1969/46/section/1).]

[3* Sec-1, Age of Legal Capacity (Scotland) Act 1991; Age of legal capacity-
(1) As from the commencement of this Act-
(a) a person under the age of 16 years shall, subject to section 2 below, have no legal capacity to enter into any transaction;
(b) a person of or over the age of 16 years shall have legal capacity to enter into any transaction.]

MINOR’S AGE AS PER STATUTES PREVAILING IN THE UNITED STATES OF AMERICA (USA)

The USA is a federal country which gives autonomy to the states to formulate law, thereby, the age of minority varies from state to state amongst the 50 states of the USA. In most of the states, the age of majority is 18 years but in some states it varies between the age of 18 and 21 years.

SIGNIFICANCE OF AGE OF MINOR IN LEGAL PROVISIONS (INDIA):

1. MATRIMONIAL LAWS

– Maintenance: There are provisions for maintenance of the married girl child, the husband is liable to pay the maintenance if he is a major and if the husband is a minor, his parents would be liable to pay the maintenance.

– Child Marriage:

➢ The legal status of a child marriage in Hindu as well as Muslim Law is voidable at the option of the parties. However, if the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void.

➢ In Hindu Law, under Section 13(2)(iv) of the Hindu Marriage Act, 1955, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years, i.e. even before she attains majority.

➢ Under Muslim Law, Section 2 (vii), Dissolution of Muslim Marriages Act, 1939 provides that if a minor girl is given in marriage by her father or other guardian before she attained the age of fifteen years may repudiate the marriage before attaining the age of eighteen years. Provided that the marriage has not been consummated.

One question remains unanswered as to who will represent or help these children, who have been forced to marry, to approach the Courts. This is also not in consonance with the provisions of secular law i.e. Prohibition of Child Marriage Act, 2006, according to which marriage of a child bride below the age of 15 years is void and there is no question of seeking a divorce since, a void marriage is no marriage

– Age of Consent For Marriage:

■ Its time to re-think over different age for female (18 years) and male (21 years) for valid marriage by bringing a uniform age of consent of marriage for all citizens equally.this can be done by putting an end to the stereotype that wives must be younger than their husbands.

■ The 18 years old have the liberty to chose their government irrespective of their gender but they are not mature enough as to make decision about their matrimonial life. Thereby, there is need to recognise a universal age for majority. The age of majority must be recognised uniformly as the legal age for marriage for men and women alike as is determined by the Indian Majority Act, 1875, i.e. eighteen years of age. The differences in age for husband and wife have no basis in law as spouses entering into a marriage are by all means equals.

■ In Independent Thought v. Union of India, AIR 2017 SC 4904, the Hon’ble Supreme Court read down Exception 2 to Section 375 of IPC that allowed the husband of a girl child – between fifteen and eighteen years of age the right to have intercourse with her. The Supreme Court dealt specifically with the exception dealing with married girls aged between fifteen to eighteen years. The Court rightly held that a child remains a child regardless of whether she is married or unmarried and therefore intercourse with a minor would be rape regardless of her marital status.

2. GUARDIANSHIP LAWS–

– Guardianship and Wards Act, 1890, Section-21 provides the capacity of minors to act as guardians-A minor is incompetent to act as guardian of any minor except his own wife or child or where he is the managing member of an undivided Hindu family, the wife or child of another minor Member of that family.

– In a matrimonial relation, the laws on guardianship are clear, the husband will be the guardian of his wife minor or major. The issue also becomes relevant if the husband of the minor girl himself is a minor. Then the question arises that when it comes to compulsory registration of marriage, should the law encourage the tacit compliance of child marriage by allowing the valid marriages as per personal laws to get registered, or should the law not register these marriages as this action prima facie amounts to turning a blind eye towards the secular statutory law against child marriages.

3. IN THE DOMAIN OF CONTRACTUAL LAW

■ Minor’ s contract void ab initio: Before 1903, it was not clear that contract enter into by the minor is void or voidable. But the landmark judgement of Privy Council in the case of Mohori Bibi v. Dharma Das Ghose, (1903) ILR 30 Cal. 539 (PC), removed this ambiguity by holding that the minor’s agreement is void ab initio. Since, for making an agreement enforceable and to convert it into a contract, one of the condition is that the party should be competent to contract but minor is not competent to contract because he has not completed the age of 18 years and anyone who enters into contract with a minor that contract will be void ab initio. Simultaneously, a clause is incorporated that allows a minor to enter into contract for his benefits, it means that the minor can enforce that particular part of contract which is in his own interest. Thereby, the minor can sue the other party to get the benefit for his welfare but if a minor enters into a agreement with anybody, then he is not personally accountable, only minor’s property will be accountable to pay the debt.

The law protects the minor’s rights since they are not mature and may not possess enough capacity to judge what is good and what is bad for them. The position of agreement made by a minor is void-ab initio, i.e. absolutely null and void from the very beginning, therefore, it does not give rise to any legal consequences.

ANALYSIS OF THE PARADOX, SUGGESTIONS & CONCLUSIONS

Our society has come a long way from the era when different civilizations bestowed adult responsibilities on the pre-pubescents but with the progression of time, the society went through multitude of changes and with these changes, the temperament of the people of society also changed. The fast emerging modern technology provided the platform for not only convenience to life but also a breeding ground for more versaltile crimes involving the youngsters. As a coin have two sides, similarly, this situation have two outcomes- at one end the mind of the adolescents is manuplated which leads them to become aggressors and on the other end, they are the victims of crimes due to loopholes in the statutory protections.

After comprehensive and elaborate study of Indian Statutes and the law of some leading nations, the prima facie observation is that there is confusion and complexities surrounding the age of minority around the world due to the lack of a clear cut definition. This ambiguity creates mahem in the life of the youngsters.

There is a need to distinguish between civil law and criminal law while dealing with the concept of the age of minority because these law operates on different set of ingredients and ascpects. In civil law, it is more about capacity including the physical and mental capacity but criminal law is diverse because the rules of criminal jurisprudence lay emphasis over the intent i.e. `mens rea’ to constitute guilt in a crime mere physical action is not enough to inculpate a person. While establishing guilt of a person, the judge has to ascertain whether the person have capacity (the word is used in the criminal jurisprudence of almost every nation) to formulate a particular intent or is the person mature enough to understand the nature of the act he/she is engaged.

There can be unanimity and certainity in the age in the civil law, field covering contractual law, matrimonial law, law related to alcohol consumption, sufferage rights, guardianship laws, etc. as in these fields, there is necessity of development of mental and physical state that in majority of cases is attained at post pubescent stage i.e. around the age of 18 years and for this law around the world and in India is somewhat certain and unanimous.

While dealing with criminal law, there is a need of developing the concept of `doli capax’ & `doli incapax’ in a comprehensive manner for unanimous application of the laws relating to criminal offences, such as- murder, sexual abuse, IT related offences, fraud, etc. because criminality among youth is the outcome of several factors as `no-one is born criminal’. For instance, some children have a highly cognitive mind at a very young age who are capable of performing complex tasks while most children of his/her age would not be able to perceive in the same manner. Moreover, the background of upringing also plays a vital role in shaping an individual, for instance, three scenarios or cases of a child of 14 years-

i. First case, child have been consistently exposed to child abuse, or

ii. Second case, a child of the same age living with thieves or habitual offenders, or

iii. Third case, where the child is brought up by a normal family who are providing him/her proper education and care;

Then in these scenarios, these three children of the same age can not be placed in the same category as this will create a paradoxical situation in the implementation of law.

At present, what the countries around the world and our own nation is doing is that they are implementing the different laws imposing various criminal liability over different age groups which they feel is best suited to their demographic situation and the temperament of the society due to which efforts at international level do not bear any fruit in a long run. This fails in checking crime rate and rather caste a stigma on the youth which renders the possibility of their reformation a very difficult task.

Therefore, it is crucial to recognize the fact that providing uniformity or certainity of a specific age will not subserve the purpose but the mental capacity of comprehending the state and nature of affairs should define the level of maturity which is subjective from child to child. Now, the issue is how to come out of this paradox? One solution could be the analysis of children which could be done by the establishment of Committees at national, state and district level; comprising of child psychologists as well as members from legal field who have the experience of dealing with children related crimes, child rights, etc. who can analyse the background of the upbringing and the current situation of the concerned child be he/she is a victim or the offender. Child cells could be established at every village, town and city; the official of such cells will also possess training in dealing with children envolve in crimes to assist committee in their function. As earlier stated, no one is born criminal but the situations during the period while growing up, turns an innocent child into a heinous criminal. So, such establishment and psychological help will provide a way for reformation to the children exposed to crimes.

The essence of criminal jurisprudence, itself eliminates the question of certainity or unanimity in the age for a person to be described as a child rather there is a need for law makers around the world to truly develop the concept of doli capax and doli incapax to genuinely mitigate the issue of conflict and paradox in the age of minority.