Judgments
Supreme Court
United Finance Corporation v. M.S.M. Haneefa
MANU/SC/0035/2017
11.01.2017
Limitation
Article 134 of Limitation Act, 1963 applicable “when sale becomes absolute” and not when sale was confirmed
Instant appeal arises out of order passed by High Court of Kerala allowing revision and thereby dismissing application filed by Appellant under Order XXI Rule 95 of Code of Civil Procedure,1908 (CPC) on ground that, application is barred by limitation and declining direction for delivery of possession of immovable property purchased in Court auction sale to Appellant. Challenging impugned order, it was submitted that, Court auction sale does not become absolute on passing of a mere order of confirmation of sale as enjoined by Order XXI Rule 92(1) of C.P.C. but it becomes absolute only on termination of proceedings initiated to set aside the order confirming the sale.
Language of Order XXI Rule 95 of C.P.C is indicative that application for delivery of possession of property purchased in Court auction can be filed where “a certificate in respect thereof has been granted under Rule 94 of Order XXI of CPC. In terms of Article 134 of Limitation Act, 1963, an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree has to be filed within a period of one year from the date when the sale becomes absolute.
Sale could not have become absolute till proceedings in the revision in C.R.P.No.2829/2002 was over and revision was disposed of. Judgment-debtor, had filed two applications; to set aside sale alleging that, property was sold for a lower price as a result of which substantial injury was caused to him and another application for appointing Advocate-Commissioner to assess value of the property. As against order dismissing application, judgment-debtor has filed revision. So long as said revision was pending, Court auction sale was yet to become absolute. Till revision was disposed of in one way or the other, sale was yet to become absolute. In Article 134 of Limitation Act, legislature has consciously adopted expression “when sale becomes absolute” and not when sale was confirmed.
As against order dismissing revision since, revision was preferred by judgment-debtor and same came to be disposed of on 9th July, 2003, sale became absolute only on 9th July, 2003. Application filed under Order XXI Rule 95 of C.P.C on 30th August, 2003 was well within period of limitation. High Court was not right in holding that, application under Order XXI Rule 95 of C.P.C was barred by limitation and impugned order cannot be sustained. Supreme Court set aside impugned order and allowed the appeal.
Relevant
Sri Ranga Nilayan Rama Krishna Rao vs. Kandokori Chellayamma AIR 1953 SC 425, Chandra Mani Saha and Ors vs. Anarjan Bibi and others AIR 1934 PC 134, Order XXI Rule 95 of Code of Civil Procedure, 1908
Tags : Sale Possession Delivery Limitation
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High Court of Delhi
Directorate of Education & Anr. v. Mr. Karam Vir Singh Rangi & Ors.
MANU/DE/0071/2017
11.01.2017
Civil
Authorities acting under Persons with Disabilities Act, 1995, have no power like a Court to pass judgment including directions in nature of injunction
By present writ petition, Petitioners, including Petitioner no. 1/Directorate of Education impugns order of Chief Commissioner for Persons with Disabilities by which Commissioner of Disabilities has passed various directions against present Petitioners. Directions were passed against present petitioners in view of a complaint filed by six complainants before Chief Commissioner for Persons with Disabilities and which persons have been arrayed as Respondent nos. 1 to 6 in this petition.
Issue in question is no longer res integra and has been decided by Supreme Court in its judgment in case of State Bank of Patiala and Others vs. Vinesh Kumar Bhasin. Supreme Court in its judgment holds that, authorities acting under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, have no power like a Court to pass judgment including directions in the nature of injunction, etc.
In view of above, since Respondent no. 7, Chief Commissioner Acting under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act has no power to pass impugned order, this writ petition is allowed setting aside the same.
Tags : Authority Power Scope
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Supreme Court
Saloni Arora v. State of NCT of Delhi
MANU/SC/0032/2017
10.01.2017
Criminal
Prosecution under Section 182 of IPC void without following procedure prescribed under Section 195 of Cr. PC
Instant appeals arise out of criminal proceedings pending in Court of Additional Session Judge, Delhi in relation to offences registered under Sections 120-B, 201, 302, 364 and 365 of Indian Penal Code, 1860 (IPC) against accused on basis of FIR. In aforementioned proceedings, State Prosecuting Agency sought to prosecute Appellant for commission of an offence punishable under Section 182 of IPC. Appellant, felt aggrieved of this action of prosecuting agency, filed an application for her discharge on ground that, since no procedure contemplated under Section 195 of Code of Criminal Procedure, 1973 (Cr. PC) was followed by prosecution, Appellant cannot be prosecuted for such offence. Trial Court dismissed Appellant's application and order of trial Court was upheld by High Court.
Learned counsel for parties rightly pointed out on strength of law laid down by this Court in case of Daulat Ram vs. State of Punjab, that in order to prosecute an accused for an offence punishable under Section 182 of IPC, it is mandatory to follow procedure prescribed under Section 195 of the Code else such action is rendered void ab initio. In case of Daulat Ram it was held that, there is an absolute bar against the Court taking seisin of case under Section 182 of IPC except in manner provided by Section 195 of Cr. PC. Section 182 of IPC does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. Complaint must be in writing by public servant concerned. Trial under Section 182 of IPC without Tehsildar’s complaint in writing is, therefore, without jurisdiction ab initio.
In present case, prosecution while initiating action against appellant, prosecution did not take recourse to the procedure prescribed under Section 195 of Cr. PC. Supreme Court allowed the appeals and opined that action taken by prosecution against Appellant insofar as it relates to offence under Section 182 of IPC is concerned, is rendered void ab initio being against the law laid down in case of Daulat Ram.
Relevant
Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206), Section 182 of Indian Penal Code, 1860, Section 195 of Code of Criminal Procedure, 1973
Tags : Conviction Procedure Applicability
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High Court of Delhi
Central Bank Retirees Grievances Cell “Kasht-Haran” v. Union of India and Anr.
MANU/DE/0045/2017
10.01.2017
Service
Public Interest Litigation does not lie in service matters.
Instant writ petition is filed by Petitioner said to be an NGO being a trust registered under Indian Trust Act, 1882. Petitioner is “Central Bank Retirees Grievances Cell”. In present writ petition, Petitioner claims the relief of directions to be issued to all public sector banks that in case of a penalty of removal/dismissal from services is imposed then outstanding leave should be allowed to be encashed and be paid along with interest.
It is a well settled law in view of a catena of judgments of Supreme Court that in service matters a Public Interest Litigation petition does not lie. One such recent judgment of Supreme Court is case of Bholanath Mukherjee and Others vs. Ramakrishna Mission Vivevkananda Centenary College and Others. There is a reason why in service matters a writ petition cannot be filed on behalf of an association for various individual persons because if any action for contempt has to be taken against individual persons such action cannot be taken by Court against individual persons who are not before Court and are only being represented by a body/association, such as in present case.
Since, Petitioner is not a living person and is only an NGO, rights of such an NGO are different from rights of an individual person, and rights of an individual person as per service matters law can only be enforced by such individual persons by seeking appropriate writs of certiorari, mandamus and/or any other appropriate order. Petitioner can only have locus standi if any personal rights of Petitioner were involved as an NGO but not on account of petitioners pleadings to be representing thousands and lakhs of employees of public sector banks. High Court held that, since legal position is settled, writ petition is not maintainable. Though, Court granted liberty to each individual employee of Bank who seeks rights to file appropriate independent proceedings and dismissed writ petition.
Relevant
Bholanath Mukherjee and Others Vs. Ramakrishna Mission Vivevkananda Centenary College and Others, (2011) 5 SCC 464
Tags : Locus standi Writ Petition Maintainability
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Supreme Court
Behram Tejani & Ors. v. Azeem Jagani
MANU/SC/0022/2017
06.01.2017
Property
Person holding premises gratuitously or as caretaker or servant would not acquire any interest in property even by long possession
Instant appeal challenges judgment passed by High Court of Bombay setting aside Order passed by Bombay City Civil Court. Said Notice of Motion was dismissed by Bombay City Civil Court vide Order observing that it is specific submission of Defendant that Noorbanoo herself has no right in premises. Only on sympathetic ground she is allowed to occupy the premises. Civil Court viewed that, there is no any substantial right made out on behalf of plaintiff to entitle him for such equitable relief like injunction. Order of dismissal of Notice of Motion was challenged by filing Appeal in High Court of Bombay which was allowed by judgment and Order presently under appeal.
Submission of Appellants that grand-mother of Respondent though did not have any right qua the premises was permitted to occupy purely out of love and affection is not without merit. Status of grand-mother is thus of a gratuitous licensee and that of Respondent is purely of a relative staying with such gratuitous licensee.
In Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira, Supreme Court laid down the principles observing that no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
Thus, a person holding the premises gratuitously or in capacity as a caretaker or a servant would not acquire any right or interest in property and even long possession in that capacity would be of no legal consequences. In circumstances, City Civil Court was right in rejecting prayer for interim injunction and that decision ought not to have been set aside by High Court. Supreme Court set aside the judgment under appeal and restored order passed by Bombay City Civil Court.
Relevant
Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira
Tags : Property Possession Caretaker Interest
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High Court of Bombay
Ramdas Daulat Sadarao v. The Divisional Controller, Maharashtra State Road Transport Corporation
MANU/MH/0009/2017
06.01.2017
Labour and Industrial
Passengers cannot be examined every case; non-examination of passengers will not affect disciplinary proceedings
Petitioner is aggrieved by the judgment of Industrial Court, by which, his Complaint has been dismissed and punishment of reduction of pay by three stages has been sustained. Petitioner submitted that, Petitioner was charge sheeted for having consumed liquor while on duty and being a Driver, the bus trip was cancelled because of his inability to drive. Petitioner had taken a stand that he had consumed cough syrup. After charges were held to be proved, he was issued with an order of punishment, by which, his pay was reduced by three stages. Grievance is that Bus Conductor alone was examined. No independent witness was examined. No passenger was examined. There is no loss caused to the MSRTC. It is, however, conceded that, there was no stand taken by Petitioner before any authority at any stage that the Conductor had developed animosity towards the petitioner.
Contention as regards non-examining passengers is concerned, same has to be rejected in light of the judgment delivered by Supreme Court in matter of KSRTC Vs. B.S.Hullikatti and KSRTC Vs. A.T.Mane. Settled law is that, passengers cannot be examined in each and every case and non-examination of the passengers will not affect the disciplinary proceedings. Submissions that, punishment imposed is not commensurate to gravity and seriousness of misconduct is concerned, same has to be rejected. It is settled law that a blemished past service record operates as an aggravating factor.
Consuming liquor while on duty and performing the function of a Driver of an ST Bus which has a sitting capacity of 60 and standing capacity of 20, per se is a grave and serious misconduct. Misconduct would not become grave only after such a Driver causes an accident resulting in death of passengers or persons on the street. It is not expected of an employer to wait till such a Driver commits an accident resulting in fatalities. Respondent / Corporation has not imposed punishment of dismissal from service on Petitioner and more so when there are 36 misconducts mentioned in default card.
Supreme Court in the matter of Damoh Panna Sagar Rural Regional Bank and Another vs. Munna Lal Jain has held that merely because the punishment is disproportionate would not warrant interference of this Court. The punishment must amount to a shockingly disproportionate punishment.
Relevant
Damoh Panna Sagar Rural Regional Bank and another Vs. Munna Lal Jain [2005 (104) FLR 291], KSRTC Vs. B.S.Hullikatti [AIR 2001 SC 930] and KSRTC Vs. A.T.Mane [(2005) 3 SCC 254]
Tags : Punishment Imposition Validity
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