Supreme Court

Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department and Ors. Vs. Kamala and Ors.

MANU/SC/0355/2018

10.04.2018

Criminal

An order of detention cannot be rendered illegal merely because it does not specify period of detention

In instant case, the High Court has set aside an order of detention issued under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 on the ground that, the period of detention was not specified. In arriving at this conclusion, the High Court has relied upon a decision of this Court in Commissioner of Police v. Gurbux Anandram Bhiryani and on a judgment of the High Court in S. Santhi v. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat. The Government of Tamil Nadu is in appeal.

In T Devaki v. Government of Tamil Nadu, a Bench of present Court has held that, since the legislation does not require the detaining authority to specify the period for which a detenue is required to be detained, the order of detention is not rendered invalid or illegal in the absence of such specification. Further, present Court has consistently taken the view that, an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of present Court in Ujagar Singh v. State of Punjab, while considering validity of detention order made under Section 3 of the Preventive Detention Act, 1950 held that, non-specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid.

In Suna Ullah Butt v. State of Jammu & Kashmir, validity of detention order made under Jammu and Kashmir Preventive Detention Act, 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify the period of detention. The court held that, since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention.

The decision in Bhiryani's case has been overruled. In the circumstances, the High Court was not justified in quashing the order of detention on the basis that, no period of detention was provided in the order. The High Court has proceeded on the basis of the decision of present Court in Bhiryani which is no longer good law in view of the subsequent decision of a larger Bench in Devaki. The decision of the High Court in Santhi, to the extent that it adopts the same position as in Bhiryani, will not reflect the correct legal position.

Accordingly, the impugned judgment of the High Court is set aside. As a consequence, the detention order shall stand revived. However, since the period of detention has come to an end, nothing further remains except for present Court to clarify the true legal position. The criminal appeal is accordingly disposed of.

Relevant

Ujagar Singh v. State of Punjab [MANU/SC/0018/1951
: (1952) 3 SCR 756 : AIR 1952 SC 350: 1953 Cri LJ 146], Suna Ullah Butt v. State of Jammu & Kashmir [MANU/SC/0270/1972
: (1973) 3 SCC 60: 1973 SCC (Cri) 138: (1973) 1 SCR 870], Suresh Bhojraj Chelani v. State of Maharashtra [MANU/SC/0223/1982
: (1983) 1 SCC 382: 1983 SCC (Cri) 202]

Tags : Detention Period Specification

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High Court of Bombay

Ramesh Vs. Ratnakar and Ors.

MANU/MH/0632/2018

10.04.2018

Property

Only because signature of one of parties is missing in a document, it cannot be concluded that such person did not join in execution of instrument

The question arises in present appeal is, as to whether a registered sale deed which does not bear signature of the vendor at the place where his name is written as the vendor, but bears his signatures in places where corrections are made in the text of the sale deed and it also bears signature on the reverse of the last page along with his thumb impression, acknowledging receipt of balance consideration, before the Registrar, can be said to be a valid sale deed or it has to be discarded only because signature of the vendor is absent at the place where his name is written as the vendor. In instant case, the Trial Court found that, registered sale deed was valid and that the Respondent No. 1 had failed to prove that he had been forcibly dispossessed by the Appellant after 12th February, 1999. Aggrieved by the same, the respondent No. 1 filed Regular Civil Appeal before the Appellate Court. The Appellate Court has reversed the findings of the Trial Court by the impugned judgment and order and it has found that the suit filed by the Respondent No. 1 was within limitation and that the registered sale deed dated 25.01.1999 was to be treated as cancelled. It was declared as null and void. The Appellant was directed to hand over possession of the suit field to the Respondent No. 1 within a period of one month from the date of the judgment and order.

The Hon'ble Supreme Court in the case of Rajendra Pratap Singh vs. Rameshwar Prasad has held in the context of a lease made by a registered instrument that, only because signature of one of the parties is missing in a document, it cannot be concluded that such person did not join in execution of the instrument. The observations made by the Hon'ble Supreme Court in the said judgment, are not limited to a lease deed, but, they are made with reference to execution of registered instruments. It has been laid down that, the question as to whether both parties indeed executed the instrument or not, will be a question of fact to be determined on the basis of evidence. Further, it was observed that, there is no stipulation that the instrument must be signed by both parties. The requirement is that, when the lease is made by a registered instrument, "such instrument shall be executed by both the lessor and lessee."

The Apex Court further laid down that, if the document is required by law to be registered, both parties can be involved in the process without perhaps obtaining the signatures of one of them. In all such instances, the instrument can be said to have been executed by both parties thereto. If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it, of course it is only rebuttable presumption. Similarly, if an instrument is signed by only one party it does not mean that both parties have not executed it together. Whether both parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the particular suit. Merely because the document shows only the signature of one of the parties, it is not enough to conclude that the non-signing party has not joined in the execution of the instrument.

Mere absence of signature of Respondent No. 1 at one place in registered sale deed dated 25th January, 1999, cannot become the basis for the Respondent No. 1 to claim that such sale deed was never executed. The aforesaid question of fact regarding execution of the registered sale deed has to be ascertained on the basis of evidence on record. In the present case, the evidence on record is in the form of both attesting witnesses and the scribe appearing before the Court and deposing in favour of execution of the aforesaid registered sale deed by the Respondent No. 1 in favour of the Appellant. There is record of the Registrar's Office and facts have come on record showing that, the Respondent No. 1 is a well educated person and not an illiterate person who was taken for a ride by the Appellant and misled into execution of a document which the Respondent No. 1 never intended to execute.

The Appellate Court has erred in proceeding on the basis that, the Appellant ought to have proved that the signatures and thumb impression on the aforesaid registered sale deed were that of the Respondent No. 1, when it was the Respondent No. 1 who was denying his signatures and thumb impression on the registered document. Being the Plaintiff, the burden was on Respondent No. 1 to prove that, the signature and thumb impression on the sale deed were not his, particularly because it was a registered document. It is also a fact that, the Respondent No. 1 never filed any police complaint in respect of his signatures having been allegedly forged on the registered sale deed, which is also a relevant factor in the present case. The Appellant examined both the attesting witnesses and scribe to prove that, the Respondent No. 1 indeed executed the registered sale deed in the Registrar's Office.

The Appellate Court erred in holding that the respondent No. 1 had proved that he had not executed the registered sale deed dated 25.01.1999 (Exh. 35) and that the same deserved to be cancelled, being null and void. Accordingly, the first substantial question of law framed by this Court is answered in favour of the Appellant and against the Respondent No. 1.

The cause of action to file the suit could not be said to have accrued to the Respondent No. 1 from the date when he published a notice in the newspaper on 31st May, 2001 or the police complaint made on 14th December, 2001. In the plaint or anywhere in the evidence, the Respondent No. 1 has not stated the date on which he was allegedly forcibly dispossessed. Considering the fact that the Respondent No. 1 is a well educated person, being Principal of a Junior College, and the fact that he continued in ownership and possession of the balance portion of land other than the suit property in Survey No. 38, it becomes clear that, the Respondent No. 1 has not clearly demonstrated the point in time when cause of action was triggered for him. Consequently, the material on record shows that, the suit was barred by limitation, which the Appellate Court failed to appreciate. The impugned judgment and order of the Appellate Court is set aside and that of the trial Court is restored and the suit filed by the Respondent No. 1 is dismissed.

Relevant

Rajendra Pratap Singh vs. Rameshwar Prasad

Tags : Sale Deed Execution Validity

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Supreme Court

Bharatiya Janata Party, West Bengal Vs. State of West Bengal and Ors.

MANU/SC/0334/2018

09.04.2018

Election

Once the election process has been set in motion, the Court ought not to interfere

By the present writ petition filed under Article 32 of the Constitution of India, the Petitioner seeks a writ of mandamus to direct the West Bengal State Election Commission-Respondent No. 6 to issue nomination forms to the candidates of the Petitioner so as to enable them to file their nomination in the ensuing upcoming panchayat elections as also to take immediate steps to make arrangements for submission of nomination papers through email and to provide police protection to the candidates of the Petitioner so as to enable them to collect and deposit the nomination forms for the purpose of contesting the panchayat elections already notified and also direct the Respondents Nos. 1 to 3 to call for Central Para-Military Forces to maintain the law and order during the conduct of the panchayat elections in the State of West Bengal.

It is not in dispute that, the West Bengal State Election Commission had issued notifications 2nd April, 2018 for holding panchayat elections in the State of West Bengal. Thus, the election process has been set into motion. Present Court, in the case of Bodula Krishnaiah held that, once the election process has been set in motion, the Court ought not to interfere. However, the fact remains that, according to the newspaper reports filed along with writ petition which has been referred to by the Learned Senior Counsel for the Petitioner incidence of violence has taken place, when the candidates have gone to obtain and file their nomination papers. This also stands fortified with the notification dated 5th April, 2018 issued by the West Bengal State Election Commission where the State Election Commission had provided additional venue for filing the nomination papers.

The West Bengal Panchayat Elections Act, 2003 has empowered the State Election Commissioner to pass appropriate orders in relation to any grievance, when made by any political party, or/and their individual candidate including any independent candidate with regard to any matter relating to and arising out of the election and election process. It is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may be and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process.

The Supreme Court grants liberty to all political parties, their candidates, including any independent candidate/s proposing to contest the election in question, to approach the State Election Commissioner with their any individual or/and collective grievance. If any such grievances are made by any political parties or/and any candidate/s in writing then needless to say, the State Election Commissioner would ensure disposal of any such grievance so made by the party concerned strictly in accordance with law forthwith.

The Supreme Court hopes and trusts that in order to ensure fair and free election to the panchayats, the State Election Commission shall take appropriate steps to remove the apprehensions of the Petitioner and/or intending candidates and they may not be deprived of their chance to contest the panchayat elections. The writ petition disposed off.

Relevant

Boddula Krishnaiah and Anr. v. State Election Commissioner, A.P. and Ors. MANU/SC/0417/1996
: (1996) 3 SCC 416

Tags : Nomination forms Issuance Police protection

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High Court of Jammu and Kashmir

ARDEE Infrastructure Private Ltd. and Ors. Vs. Prabha Kapoor and Ors.

MANU/JK/0273/2018

07.04.2018

Civil

Jurisdiction of the Court is required to be determined with respect to the situs of the property

In facts of present case, the Respondents filed a suit for declaration seeking to declare a communication dated 04th October, 2013 issued by Petitioner No. 1 as nullity and inoperative in the eyes of law and also for declaring the Respondents entitled to title, rights and interest in the under construction Flat No. A1-703 as per the Agreement dated 11th August, 2005 entered into between the parties. The Respondents also claimed a decree of consequential relief of specific performance, mandatory injunction and permanent prohibitory injunction. In response to the summons issued by the trial Court, the Petitioners appeared and moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint, primarily, on the ground that the suit property, which is a Flat, is situated in Gurgaon (Haryana) and, therefore, the Courts in Jammu including the trial Court would have no jurisdiction to entertain the suit and pass the decree prayed for. In support of their contentions, the petitioners relied upon Section 16 of the CPC. The said application was opposed by the respondents on the ground that, since the Agreement between the parties was executed in Jammu, all the payments were made from Jammu and a communication dated 4th October, 2013 sent by the petitioners too was received by the respondents in Jammu, therefore, a part of cause of action has accrued in Jammu which is good enough to confer jurisdiction on the Courts in Jammu including the trial Court. Reliance was placed on Section 20 of CPC.

Trial Court appears to have considered the matter at some length and ultimately came to the conclusion that it had jurisdiction to entertain the suit and grant the relief prayed for. The order of the trial Court impugned in this petition is assailed by the petitioners in this petition on the ground that the trial Court has failed to appreciate the distinction between Section 16 and Section 20 of the CPC. It is submitted that the pith and substance of the suit of the petitioners is for specific performance of contract pertaining to immovable property and that being so, the jurisdiction of the Court would be regulated by Section 16 and not Section 20 of the CPC. Elaborating his arguments, learned counsel for the petitioners submits that Section 20 of the CPC would operate only with respect to the suits other than those categorized in Section 16 of the CPC.

From a bare reading of Sections 16 and 20 of CPC, it is clear that the suits for recovery of immoveable property with or without rent or profits, for partition of immoveable property; for foreclosure, sale or redemption of a mortgage pertaining to immoveable property; for compensation for wrong to the immoveable property; and for determination of any other rights or interest in the immoveable property etc. are to be instituted where the subject matter is situated. However, the suits of the categories other than those mentioned in Sections 16, 17, 18 & 19 of the CPC, are to be instituted in a Court within the local limits of whose jurisdiction, besides others, the cause of action wholly or in part accrues.

The Court is called upon to read the plaint as a whole to find out whether it discloses cause of action against the Defendants or not. What is a "cause of action" is a question of fact which has to be gathered on the basis of averments made in the plaint in entirety. A "cause of action" is every fact, which traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court"

The suit of the Respondents is essentially for determination of their rights and interest in the immoveable property and, therefore, falls in Section 16 (d) of the CPC. That being so, the suit pertaining to the determination of rights and interest in the immoveable property which is situated in Gurgaon would lie in a Court in Gurgaon within whose territorial jurisdiction the aforesaid under construction flat or the land where it is being constructed is situated. The suit of the Respondents falls within the ambit of Section 16 of CPC and the jurisdiction of the Court is required to be determined with respect to the situs of the subject matter. The order of the trial Court is set aside. Petition allowed

Tags : Suit Situs Jurisdiction

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High Court of Delhi

Rajbir Singh and Ors. Vs. Union of India

MANU/DE/1332/2018

05.04.2018

Civil

Once deceased with valid train ticket is found on railway track, which is not near place of residence or work, onus of proof shifts upon railway to show that, deceased was not a bonafide passenger

In facts of the case, the deceased, Appellants' son, while travelling by train accidently fell down from the running train near the housing board colony and suffered injuries. Subsequently, he succumbed to the injuries. It is claimed that, the deceased was a bonafide passenger and had a valid MST. The claim petition was contested by the respondent before the Tribunal and it was averred that the victim was not a bonafide passenger; he did not sustain injuries due to fall; there was no accident on 18th September, 2012 near housing board colony, Rohtak Railway Station, Haryana. The Tribunal had no territorial jurisdiction to entertain the claim. Present first appeal is filed under Section 23 of Railway Accident Claims Tribunal Act, 1987, impugning the judgment of the Railways Claims Tribunal whereby the claim petition filed by the Appellants was dismissed.

The findings of the learned Tribunal seemingly are based upon conjectures and surmises and are not supported by any acceptable evidence on record. The Respondent did not produce any evidence in defence. It is not at issue that, at the time of incident the victim had a valid MST No. 17532605 from Shakurpur Basti to Rohtak. The occurrence took place on 18th September, 2012 at around 03.00 p.m. near Housing Board Colony short of the destination station. Record reveals that after the accident, the victim sustained grievous injuries and finally he succumbed to injuries on 27th September, 2012. Post-mortem examination on the body was conducted. Post-mortem report reveals that the cause of death was due to the suffering of the injuries described therein. The information as furnished by the police revealed that, the cause of death was 'railway accident'. No valid reasons exist to disbelieve the contents of the post-mortem report prepared much prior to the filing of the claim petition.

Victim's father examined himself as AW-1 and filed his evidence by way of affidavit. The material facts deposed by him remained unchallenged in the cross-examination. He elaborated that at 04.15 p.m. he come to know about the accident. He denied that the victim died while crossing the railway track. Nothing was suggested to him that, the victim had not sustained injuries in the 'railway accident' or that the police officials had manipulated his statement.

The defence of the Respondent is not consistent. It was denied if any accident had taken place near Housing Board Colony, Rohtak on 18th September, 2012. This defence in the written statement is contrary to the suggestions put to the victim's father that at the time of incident the victim was crossing the railway track.

Liability of the railways under Section 123(c) read with Section 124(a) of the Railways Act, 1989 is a strict liability. Once the deceased with a valid train ticket is found on the railway track and which is not near the place of residence or the place of work, onus of proof shifts upon the railway to show that the deceased was not a bonafide passenger travelling on the train. This onus, the Respondent has miserably failed to discharge. No witness was examined in defence to prove that, no such accident had taken place at the spot that day. The findings of the learned Tribunal cannot be sustained and are set aside. The appeal is allowed. The appellants shall be entitled to statutory compensation of Rs. 8 lacs along with interest @ 6% per annum from the date of filing of the petition till the date of payment.

Tags : Bonafide passenger Compensation Grant

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High Court of Madras

Subaya Constructions Co. Ltd. Vs. The Commissioner, Vellore City Municipal Corporation and Ors.

MANU/TN/1696/2018

05.04.2018

Commercial

If decision relating to award of contract is bona fide and in public interest, Courts will not interfere, even if, a procedural error in assessment or prejudice to a tenderer, is made out

The Petitioner has come forward with instant Writ Petitions for issuance of Writ of Mandamus directing the first Respondent to accept the Work Completion Certificate dated 17th September, 2016 submitted by the Petitioner for processing the tender proceeding in NCB No. 81/2017-18, for providing Sewerage Collection System for UGSS in Vellore Corporation under Packages I and II, tender proceeding No. CNT/SEW/NCB/AMRUT-ADB/001/2017-2018 for providing Comprehensive Sewerage Scheme to Manali, Chinnasekkadu, Karambakkam and Manapakkam in Chennai City; tender proceeding in No. NCB No. 223/2017-18 for providing Sewerage Collection System in the extended areas of Corporation for UGSS in Trichy Corporation under Package I, respectively.

In the instant case, the Petitioner is one of the participants in the tender floated by the first Respondent and as per the tender conditions, a work completion certificate has been produced along with the tender documents. According to the First Respondent, the execution of the work is complex in nature and also involves huge financial implications, so to ensure proper execution of the work and in the public interest, the decision was taken to get opinion of the genuineness of the completion certificate of all the tenderers. The Apex Court in Jagdish Mandal vs. State of Orissa and Ors., if the decision relating to award of contract is bona fide and is in public interest, the Courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The petitioner except making vague allegations, has not produced any materials to show that the action of the first respondent is arbitrary and it has been adopted to eliminate the petitioner from the tender process. Therefore, there is no force in the contention of the learned Senior Counsel for the Petitioner.

It is also relevant to note that, in response to the letter of the First Respondent, an opinion about the performance of the Petitioner has been sent by the second respondent. Whether the opinion of the Second Respondent that, the execution of the work is unsatisfactory, was in fact warranted, or necessary or could be accepted, in view of present Court, need not be tested or decided, in these writ petitions. If the Petitioner is aggrieved by the opinion, it has liberty to challenge the same. Present is not a fit case for issuing a Writ of Mandamus to accept the work completion certificate and process the tender document of the Petitioner. Writ Petitions dismissed.

Relevant

Jagdish Mandal vs. State of Orissa and Ors. MANU/SC/0090/2007

Tags : Tender Certificate Acceptance

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