CUSTOM SEARCH

Contents of this Blog

BAR AND BENCH RELATIONSHIP: ADVOCATE SHALL NOT INDULGE IN SCANDALISING JUDICIARY

In a case before Supreme Court of India, M.B. Sanghi, Advocate vs High Court Of Punjab And Haryana ... Decided on 31 July, 1991 by the Bench Consisting of AHMADI, A.M. (J) & AGRAWAL, S.C. (J) Reported in AIR 1991 SC 1834:- Unable to secure an ad-interim stay in favour of his client, the appellant, a practising Advocate, uttered cer- tain words imputing motives to the Sub-Judge in refusing to grant the stay. The sub-Judge submitted a report to the District and Sessions Judge setting out the words uttered by the appellant, for taking necessary action against him. The District and Sessions Judge in turn submitted a report to the High Court, and proceedings for contempt were initiated by the High Court. The Supreme court held that “The appellant had made an attack on the learned Subordinate Judge which was disparaging in character and derogatory to his dignity and would vitally shake the confi- dence of the public in him and that the aspersions made by the appellant had the effect of scandalising the Court in such a way as to create distrust in the people's mind and impair confidence of the prople in Court. The appellant has, therefore, been rightly held guilty of having committed the contempt of court under section 2(c)(i) of the Act. The High Court, in its appreciation of evidence, has rightly placed reliance on the testimony of the Sub- Judge corroborated by the evidence of the Reader in his Court, in preference to the testimony of the three Advocates. ………………… Moreover this was not the first occasion in which proceedings for contempt of court had been initiated against the appellant and on an earlier occasion also proceedings for contempt of court had been initiated against him in pursuance of a report of the then Chief Judicial Magistrate, and in those proceedings the rule issued against the appellant was discharged on his tendering unqualified apology before the High Court. In those proceed- ings also the appellant is said to have made disparaging remarks against the Judge. Keeping in view the said circumstance, the High Court has found that the appellant was addicted to using contemptuous language and making scurrilous attacks on Judges. …………. In the instant case, the appellant repeated his performance presumably because he was let off lightly on the first occasion. Softjustice is not the answer. The appellant cannot be let off on an apology which is far from sincere. His apology was hollow, there was no remorse-no regret--it was only a device to escape the rigour of the law. The High Court rightly did not accept it. 

CASES AND GUIDELINES APTLY QUOTED M.Y. Shareef & Anr. v. The Hon'ble Judges of the High Court of Nagpur & Ors., [1955] 1 SCR 757, relied on. Per Ahmadi, J. (Concurring): 1. The exact words uttered by the appellant, leave no doubt that the intention of the appellant was to cast aspersions on the integrity of the Judge and to lower him in the esteem of others by creating doubts regarding his honesty, judicial impartiality and independence. The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary. Veiled threats, abrasive behaviour, use of disre- spectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a Judge into submission to secure a desired order. Such cases raise larger issues touching the independ- ence of not only the concerned Judge but the entire institu- tion. The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the Presiding Judicial Officers with impunity. The much cherished judicial independence which is of vital importance to any free Society, has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. 

L.D. Jaikwal v. State of U.P., [ 1984] 3 SCC 405. This Court described it as a 'paper apology and refused to accept it in the following words: "We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize courts and commit contempt of court with impunity. It will be rather difficult to persuade members of the Bar, who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And no sitting judge will feel free to decide any matter as per the dictates of his conscience on account of fear of being scandalized and persecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be counte- nanced, advocates who can cow down the Judges, and make them fail in line with their wishes, by threats of character assassination and persecution, will be preferred by the liti- gants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of courts." 

IMPORTANCE OF ETHICAL VALUES AND DUTY OF BAR COUNCIL When a member of the Bar is required to be punished for use of contemptuous language it is highly painful--it pleases none--but painful duties have to be performed to uphold the honour and dignity of individual Judge and his office and the prestige of the institution. Courts are generally slow in using their contempt jurisdiction against erring members of the profession in the hope that the con- cerned Bar Council will chasten its members for failure to maintain proper ethical norms. If timely action is taken by Bar Councils, the decline in the ethical values can be easily arrested.

WHY THIS BLOG OF INFORMATION - IT MAY NOT BE HELPFUL FOR HAVES BUT SEE THE PLIGHT OF HAVE NOTS

The information of case laws is collected from the websites of supreme court, several High courts & other free websites by taking care to repeat the accurate words of Hon’ble justices. All the praise and credit for this blog contents should go to Hon’ble Justices of our country, who are enlightening us with their golden words of research. I have no intention to have copyright over these blogs. I have no intention to gain monetarily from the contents of the blog. Donation is solicited from gracious donors, to subserve several humanitarian causes, including this legal awareness campaign expenses. As a advocate, I suffered a lot by unabled to invest in books and gain knowledge. With little help from seniors and clients, although I collected books, but they did not updated me, because of further financial difficulties in sparing money to books. Initially when I searched online data on Indian laws, I was surprised to see only foreign origin websites rather than Indian sites in 2006 and 2007. In 2007 I started this blog of information by pooling in the typed data and my case law index collected dairy information to blogs. Usually we get a peculiar type of cases in courts which needs some debate and research to come to accurate conclusions. Such attitude of my several colleagues and my senior encouraged me to search online solutions for the different cases of others and of my clients. The information provided in Supreme court website and Common Lii dot org website of England and other later High Courts web informations encouraged me to bring out these several blogs. Iam happy that for whatever legal query submitted by any one through google/yahoo search online, my web blogs are referred within top ten websites out of crores together searched websites. I cannot explain in any technical effect how this has happened. Its all with the help of visitors like you. The free websites of law like Indian kanoon dot org, Rishabdra dot com, openjudis, lawyersclubindia dot com, legalserviceindia dot com are doing well but still india needs consolidated data of case laws for any research oriented persons. Many pay sites are there, one should remember that a major percentage of practicing advocates in district and taluk level are having financial difficulties to even have moderate law updates, by spending nearly Rs 12,000-00(Minimum) for any law reporters, it is of great difficult to a ethical practitioner. If we go online we need Rs 12000-00 for online BB expenses and further subscription of Rs 5000-00(Minimum) for pay channels. When government is spending crores together funds over education why can’t it spend to this Nob’le profession’s legal awareness upliftment. It is a sorry state of affairs that many advocates are yet to be updated, just because of non-cenfessional financial crisis. Government is spending salary and other expenses to Hon’ble Justices, the works of their research is being utilized by private capitalist. Long live our socialist Republic. When Judges/Justices works are being utilized by private publishers just at the expense of public money of government, our govt is sitting mute spectator. It is our great disaster that no one thinks of have nots. If we say we are have not advocates. Jolly speakers amuse us - we are case less practitioners. Every one knows how cases are being hijacked by unethical persons of little knowledge with many touts in lower courts on caste and other broker commission lines. Law speaks great Justice to all but it is doing great injustice to its own foundation creators that is RURAL ADVOCATES.

GOVERNMENT LAND SHALL BE DISPOSED BY ONLY PUBLIC AUCTION

AFTER 08-05-2007 FROM KARNATAKA LAND REVENUE AMENDMENT ACT 2005


"69A. Disposal of lands or other property belonging to the State Government by public auction.- (1) Notwithstanding anything contained in section 69 of the Act subject to such rules as may be prescribed in this behalf the State Government or the Authorised Officer may dispose of valuable land or other property belonging to the State Government under section 67 or otherwise by public auction.
Provided that heritage sites and buildings or relics shall not be disposed under this section. (2) The Deputy Commissioner or the Authorised Officer may by order confirm the sale under sub-section (1) on the expiration of thirty days from the date of sale of the immovable property.

Explanation.- For the purpose of this section valuable land means those lands which if auctioned shall fetch values far above the normal price."

REVENUE AUTHORITIES ARE DUTY BOUND TO MAKE REVENUE RECORD ENTRIES - KARNATAKA HIGH COURT

Mahadevappa And Ors. vs State Of Karnataka By Its Secretary, Revenue Department And Ors. ILR 2008 KAR 1750 It is needles to say it is duty bound on the part of the revenue authorities and the Sub-Registrar as per Section 128(4) to invariably intimate the fact of transfer of interest or ownership from the first party to the second party to the concerned revenue authorities so that concerned revenue authorities will make the mutation entries in the concerned register and also proper entries in the revenue register after following the procedure as per Section 129 of the Land Revenue Act. Ultimately, any intended purchaser would get himself verified about the status of the property whether before he could go for any such purchase or seek for transfer of interest from the person who has got a right, title and interest so that he will not be mislead. For want of these entries in the revenue records and for want of proper information from the concerned Department of the Government, often purchasers are being mislead and get into problems and hardship. It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications.

CASE LAW ON RELEVANCE OF JUDICIAL ADMISSIONS

In the case of Sangramsinh P. Gaekwad and Ors. v. Shantadevi P. Gaekwad (dead) through LRs and Ors. (2005) 11 SCC 314 , it is categorically held by the Apex Court after discussion of following decisions that judicial admissions by themselves can be made the foundation of the rights of the parties and admissions in the pleadings are admissible proprio vigore against the makers thereof. In Nagindas Ramdas Vs. Dalpatram Iccharam alias Brijram and others [AIR 1974 SC 471], this Court held: "Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong." In Viswalakshmi Sasidharan (Mrs.) and Others Vs. Branch Manager, Syndicate Bank, Belgaum [(1997) 10 SCC 173], this Court held: "On the other hand, it is admitted that due to slump in the market they could not sell the goods, realize the price of the finished product and pay back the loan to the Bank. That admission stands in their way to plead at the later stage that they suffered loss on account of the deficiency in service..." In Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust Vs. S.K. Viswanatha Setty [(2004) 8 SCC 717], this Court deprecated raising a plea for the first time before the appellate court without amendment of plaint holding that when materials to substantiate such plea had not been brought on record and, thus, it is impermissible to consider the same, stating:"However, there is no material placed on record by way of pleadings to show whether the appellant is a religious or charitable institution. The plaint was never amended. The appellant seeks exemption. Exemption needs to be alleged and proved. Opportunity is required to be given to the respondent to meet the plea of exemption. In the circumstances, we are in agreement with the view expressed by the High Court that the said plea was not open to the appellant at the stage of second appeal, particularly, in the absence of any material available to substantiate such plea." In Heeralal Vs. Kalyan Mal and Others [(1998) 1 SCC 278] following Modi Spinning (supra), it was observed:"The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned counsel for the respondents. Even that apart the said decision of two learned Judges of this Court runs counter to a decision of a Bench of three learned Judges of this Court in the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co., (1977) 1 SCR 728 : (AIR 1977 SC 680). In that case Ray, C.J., speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the defendants."

JUSTICE N KUMAR OBSERVES LAND MAFIA- LEGAL ADVISORS MAFIA- GOVERNMENT INACTION- GOOD DEVELOPMENTS

In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- 

GOVERNMENT AND PUBLIC DUPED BY OFFICIALS
“The officials of the Government, the advocates who are conducting the cases on behalf of the Government and others have let down the interest of the Government and public. Under these circumstances, I am of the view it would be appropriate to refer the entries in the original ledger book where Form No. 7 is noted and orders passed by the Land Reforms Tribunal, Bangalore South Taluk in all those cases at any rate as contained in this book, for enquiry to the aforesaid committee which may throw some light on the way the tribunal, the Government officials and others have discharged their duties in protecting public property, and if illegalities are found to take steps to restore the land to the Government.”


DO NOT REGULARIZE INJUSTICE ON TECHNICAL GROUNDS REMOVE INJUSTICE
“The judiciary is respected not on account of its power to regularize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. If appeals brought by the Government are lost on account of delay, no person is individually affected, but what in the ultimate analysis suffers is, the public interest. The law of Limitation is no doubt the same for private citizen as well as for Governmental authorities. Government, like any other litigant must take the responsibility for the acts or omissions of its officers. But some what different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. On account of impersonal machinery, no one Page 0797 incharge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represent collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. The technicalities of procedure should yield to considerations which would promote public interest and substantial justice. The Courts should decide the matters on merits, unless it is hopelessly without any merit.”


DECREE WITHOUT JURISDICTION IS NULLITY
“It is also a fundamental principle, that a decree passed by the Court without jurisdiction is a nullity. Its validity can be set up whenever and where ever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. The defect of jurisdiction whether it is technical or territorial or whether it is in respect of subject matter of action, strikes at the very authority of the Court to pass any decree and such defect cannot be cured even by consent of parties. Nullity has to be understood in the sense that it is ultra vires the power of the court passing the decree and not merely avoidable decree. If the decree strikes at the jurisdiction of the Court or the Court lacks jurisdiction, it strikes at the very root of the authority to pass the order or the decree. The decree passed by such a Court is a nullity and non est.”

PUBLIC PROPERTY NOT HANDLED PROPERLY
In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “The material on record discloses at every stage the persons who were entrusted with the responsibility of protecting the public property have let down the Government. The way the litigation has been fought and the way the Government representatives and their counsel have let down the public interest, is shocking. When the matter was brought to the notice of the Lokayuktha, it issued a clean chit to those officials saying that the public interest has not suffered. There cannot be a worst situation than this. A mighty Government rendered helpless by such advise and breach of trust. If the order of the Land Reforms Tribunal exists as contended by the plaintiff, it is clear that the Assistant Commissioner who is the Chairman of the Tribunal has failed to notice the aforesaid statutory provisions which confers no right to the vested land in the inamdar and the Tribunal to grant occupancy rights in respect of a tank bed. He is a party to this order of grant granting public property to the plaintiff. When the suit was filed for Page 0798 declaration of title on the basis of the said document though appropriate defence were taken in the written statement, the same is not pursued as they were expected to and in the result a decree came to be passed. Though it was stated in the written statement filed in the suit, steps would be taken to challenge the order of the Land Tribunal, no writ petition was filed, a serious lapse. The learned Government Advocate who conducted the case on behalf of the Government instead of advising suitably the Government to prefer an appeal, gave his opinion that it is not a fit case for an appeal. The Director of Public Prosecution (Civil) who was expected to apply his mind and take an independent decision has failed to discharge his duties and he has concurred with the opinion given by the learned Government Advocate not to prefer an appeal. It appears thereafter the concerned file did not reach the Law Department nor any opinion was sought from the Law Department. Even when the matter was being agitated in this Court in writ proceedings, advocate who was incharge of these matters appears to have not applied his mind properly.”


PRAISE FOR GOOD OFFICIALS – ALL ARE NOT BAD – LOKAYUKTA’S BLINDNESS
“However, it is heartening to note that there are some officials still left in the administration who have a commitment in life and who think about public good. The said officiate at the relevant point of time did notice that the schedule land is a Government land and it is a 'sarkari kere' and mutation entries cannot be made in the name of the decree holder. They resisted the attempt to get the mutation entries made. It is only when arrest warrants were issued against them for disobeying the decree of a Civil Court, the Government realised the blunder they have committed and the Law Officers who betrayed its trust. Then they have approached the Law Department, sought for their opinion and on consideration of the entire material the Law Department gave its advice on 22.12.2003 to the effect that it is a fit case for preferring the appeal. On 7.1.2004 the Government accorded sanction to prefer the appeal. When Lokayukta was requested to investigate the circumstances in which no appeal was filed earlier, the Lokayukta had issued an endorsement to the effect that there are no laches on the part of any Government servant and that it appears that no loss has been caused to the State. It is thereafter the appeal is filed with an application for condonation of delay.”


LEGAL ADVISORS OF GOVERNMENT GOT BLOW IN THIS CASE
“A beginner in the legal profession would know, that against a judgment and decree of declaration of title, an appeal lies and not a revision. This is the type of legal advise which has been given to the Government over a period of nearly ten years. "It is a case of salt having lost its savour". The judicial Page 0799 process is used to acquire rights over the Government property, a clear case of abuse of judicial process.”

GOVERNMENT FACING CHALLENGES WITH IN/OUT IN LEGAL FIELD
“Karnataka being one of the progressive State in the Union of India, Bangalore being the center of attraction to the whole world, unfortunately, the professional legal advise given to the Government is of this nature. It is no wonder that the value of landed property in Bangalore is more than gold and the real estate business is the most thriving business in the city of Bangalore. The State Legislature has to appoint a Committee to go into this problem of grabbing of Government lands which runs to thousands of acres involving crores of rupees. The said Committee has submitted an interim report blaming the officials and lawyers in-charge of the case and others being a privy to these illegal activities right under the nose of the seat of power. Now that multinational companies are competing with each other to have a foot hold in Bangalore, with the liberalization, globalization and privatization, having its impact on all walks of life in the society, whether the Government is capable of meeting the challenges in the field of law and in protecting its people and its properties, with the kind of legal assistance they have. There is no dearth for legal talent in the State. The problem is the mind to utilise the said talent. This case should be an eye opener to the Government. It is for them to take appropriate steps to overhaul their revenue, and legal department, including the quality of the Advocates they choose to represent them in Courts, if the Government is sincere in protecting the public and its properties.”

CONDONING THE DELAY IN FILING THE APPEAL



The Supreme Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. AIR 1987 SC 1353 held as under: The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature  is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of Justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.


In Ramlal, & Chhotelal v. Rewa Coalfields Ltd. [(1962) 2 SCR 762], it was laid down that in showing sufficient cause to condone the delay, it is not necessary that the applicant/appellant has to explain whole of the period between the date of the judgment till the date of filing the appeal. It is sufficient that the applicant/appellant would explain the delay caused by the period between the last of the dates of limitation and the date on which the appeal/application is actually filed. What constitute sufficient cause cannot be laid down by hard and fast rules.

In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC 237], Supreme Court held that discretion given by Section 5 should not be defined or crystalized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause' should receive a liberal construction.


In Inder Singh v. Kanshi Ram [AIR 1917 PC 156] it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.


In Shakuntala Devi Jain v. Kuntal Kumari & Ors. [(1969) 1 SCR 1006], a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. [(1979) 3 SCR 694] which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy the default in delay was condoned.


In Lala Mata Din v. A. Narayanan [(1970) 2 SCR 90], Supreme Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a devise tn cover an ulterior purpose. in that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

In State of Kerala v. E.K. Kuriyipe & Ors. [(1981) Supp. SCC 72], it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case.


In Smt. Milavi Devi v. Dina Nath [(1982) 3 SCR 366], it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Art.136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and case was remitted for decision on merits.

In O.P. Kathpaliaa v. Lakhmir Singh (dead) & Ors. [(1984) 4 SCC 66], a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned.

In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji & Ors. [(1987) 2 SCC 107], a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of the justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned. Experience shows that on account of an impersonal machinery ( no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties.


In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338], Supreme Court had held that the court should not adopt an injustice- oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.


In G. Ramegowda, Major & Ors, v. Spl, Land Acquisition Officer, Bangalore [(1988) 2 SCC 142], it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints'. Due recognition of these limitations on Governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly condoned.

In Scheduled Caste Coop. Land Owning Society Ltd., Bhatinda v. Union of India & Ors. [(1991) 1 SCC 174], a Bench of three Judges of Supreme Court held that the bona fides of the parties are to be tested on merits and the delay of 1146 to 1079 days was not condoned on the ground that the parties approached the court after decision on merits was allowed in other cases by this Court. Therefore, it was held that it did not furnish a ground for condonation of delay under Section 5.


In Binod Bihari Singh v. Union of India [(1993) 1 SCC 572], it was held that it is not at all a fit case where in the anxiety to render justice to a party so that a just cause is not defeated, a pragmatic view should be taken by the court in considering sufficing cause for condonation of the delay under Section 5. It was held that when the party has come with a false plea to get rid of the bar of limitation, the court should not encourage such person by condoning the delay and result in the bar of limitation pleaded by the opposite party. This Court, therefore, refused to condone the delay in favour of the party who came forward with false plea.


In M/s. Shakambari & Co. v. Union of India [(1993) Supp. 1 SCS 487], a Bench of three Judges held that delay caused in filing the appeal due to fluctuation in laying down the law was held to be a sufficient cause and delay of 14 days was condoned.


In Ram Krishan & Anr. v. U.P. State Roadways Transport Corpn. & Anr. [(1994) Supp. 2 SCC 507], Supreme Court had held that although the story put forward by the applicant for not filing the application for compensation under the Motor Vehicles Act within the period of limitation was not found convincing but keeping in vies the facts and circumstances and cause of justice, the delay was condoned and the appeal was set aside and the matter was remitted to the Tribunal to dispose it on merits.


In Warlu v. Gangotribai & Anr. [(1995) Supp. 1 SCC 37] a three-Judge Bench condoned delay of 11 years in filing the special leave petition.

Following these Obove judgments, the Supreme Court in the case of State of Haryana v. Chandra Mani and Ors. AIR 1996 SC 1623 , has held as under: It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the cours or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay. On the facts and circumstances of the case, we are of the opinion that it is a fit case for condoning the delay. The delay is accordingly condoned. The High Court is requested to dispose of the appeal as expeditiously as possible.






CONDONING THE DELAY IN FILING THE APPEAL



The Supreme Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. AIR 1987 SC 1353 held as under: The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature  is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of Justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.


In Ramlal, & Chhotelal v. Rewa Coalfields Ltd. [(1962) 2 SCR 762], it was laid down that in showing sufficient cause to condone the delay, it is not necessary that the applicant/appellant has to explain whole of the period between the date of the judgment till the date of filing the appeal. It is sufficient that the applicant/appellant would explain the delay caused by the period between the last of the dates of limitation and the date on which the appeal/application is actually filed. What constitute sufficient cause cannot be laid down by hard and fast rules.

In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC 237], Supreme Court held that discretion given by Section 5 should not be defined or crystalized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause' should receive a liberal construction.


In Inder Singh v. Kanshi Ram [AIR 1917 PC 156] it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.


In Shakuntala Devi Jain v. Kuntal Kumari & Ors. [(1969) 1 SCR 1006], a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. [(1979) 3 SCR 694] which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy the default in delay was condoned.


In Lala Mata Din v. A. Narayanan [(1970) 2 SCR 90], Supreme Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a devise tn cover an ulterior purpose. in that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

In State of Kerala v. E.K. Kuriyipe & Ors. [(1981) Supp. SCC 72], it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case.


In Smt. Milavi Devi v. Dina Nath [(1982) 3 SCR 366], it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Art.136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and case was remitted for decision on merits.

In O.P. Kathpaliaa v. Lakhmir Singh (dead) & Ors. [(1984) 4 SCC 66], a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned.

In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji & Ors. [(1987) 2 SCC 107], a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of the justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned. Experience shows that on account of an impersonal machinery ( no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties.


In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338], Supreme Court had held that the court should not adopt an injustice- oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.


In G. Ramegowda, Major & Ors, v. Spl, Land Acquisition Officer, Bangalore [(1988) 2 SCC 142], it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints'. Due recognition of these limitations on Governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly condoned.

In Scheduled Caste Coop. Land Owning Society Ltd., Bhatinda v. Union of India & Ors. [(1991) 1 SCC 174], a Bench of three Judges of Supreme Court held that the bona fides of the parties are to be tested on merits and the delay of 1146 to 1079 days was not condoned on the ground that the parties approached the court after decision on merits was allowed in other cases by this Court. Therefore, it was held that it did not furnish a ground for condonation of delay under Section 5.


In Binod Bihari Singh v. Union of India [(1993) 1 SCC 572], it was held that it is not at all a fit case where in the anxiety to render justice to a party so that a just cause is not defeated, a pragmatic view should be taken by the court in considering sufficing cause for condonation of the delay under Section 5. It was held that when the party has come with a false plea to get rid of the bar of limitation, the court should not encourage such person by condoning the delay and result in the bar of limitation pleaded by the opposite party. This Court, therefore, refused to condone the delay in favour of the party who came forward with false plea.


In M/s. Shakambari & Co. v. Union of India [(1993) Supp. 1 SCS 487], a Bench of three Judges held that delay caused in filing the appeal due to fluctuation in laying down the law was held to be a sufficient cause and delay of 14 days was condoned.


In Ram Krishan & Anr. v. U.P. State Roadways Transport Corpn. & Anr. [(1994) Supp. 2 SCC 507], Supreme Court had held that although the story put forward by the applicant for not filing the application for compensation under the Motor Vehicles Act within the period of limitation was not found convincing but keeping in vies the facts and circumstances and cause of justice, the delay was condoned and the appeal was set aside and the matter was remitted to the Tribunal to dispose it on merits.


In Warlu v. Gangotribai & Anr. [(1995) Supp. 1 SCC 37] a three-Judge Bench condoned delay of 11 years in filing the special leave petition.

Following these Obove judgments, the Supreme Court in the case of State of Haryana v. Chandra Mani and Ors. AIR 1996 SC 1623 , has held as under: It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the cours or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay. On the facts and circumstances of the case, we are of the opinion that it is a fit case for condoning the delay. The delay is accordingly condoned. The High Court is requested to dispose of the appeal as expeditiously as possible.






CASE LAW ON DIRECTIVE PRINCIPLES OF STATE POLICY

In The State of Madrasv. Srimathi Champakam Dorairajan, 1951 SCR 525, it was held that the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. The view was reiterated in Deep Chand and Anr. v. The State of Uttar Pradeshand Others, 1959 Supp. (2) SCR 8.

The Court went on to hold that disobedience to Directive Principles cannot affect the legislative power of the State. So was the view taken in In Re : The Kerala Education Bill, 1957 , 1959 SCR 995. With L.C. Golak Nath and others v. State of Punjab and Another, (1967) 2 SCR 762, the Supreme Court departed from the rigid rule of subordinating Directive Principles and entered the era of harmonious construction. The need for avoiding a conflict between Fundamental Rights and Directive Principles was emphasized, appealing to the legislature and the courts to strike a balance between the two as far as possible.

Having noticed Champakam  even the Constitution Bench in Quareshi-I chose to make a headway and held that the Directive Principles nevertheless are fundamental in the governance of the country and it is the duty of the State to give effect to them. "A harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise the protecting provisions of Part III will be a 'mere rope of sand'. "Thus, Quareshi-I did take note of the status of Directive Principles having been elevated from 'sub-ordinate' or 'sub-servient' to 'partner' of Fundamental Rights in guiding the nation.

His Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kerala and Anr., (1973) 4 SCC 225, a thirteen-Judge Bench decision of this Court is a turning point in the history of Directive Principles jurisprudence. This decision clearly mandated the need for bearing in mind the Directive Principles of State Policy while judging the reasonableness of the restriction imposed on Fundamental Rights. Several opinions were recorded in Kesavananda Bharati and quoting from them would significantly increase the length of this judgment. For our purpose, it would suffice to refer to the seven-Judge Bench decision in Pathumma and Others v. State of Kerala and Ors., (1978) 2 SCC 1, wherein the learned Judges neatly summed up the ratio of Kesavananda Bharati and other decisions which are relevant for our purpose. Pathumma holds :-
"(1) Courts interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people, which the legislature, in its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society so that when such a right clashes with a larger interest of the country it must yield to the latter.
(2) The Legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in this process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. The courts have recognised that there is always a presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies on the party which assails it.
(3) The right conferred by Article 19(1)(f) is conditioned by the various factors mentioned in clause (5).  (4) The following tests have been laid down as guidelines to indicate in what particular circumstances a restriction can be regarded as reasonable:
(a) In judging the reasonableness of the restriction the court has to bear in mind the Directive Principles of State Policy.
(b) The restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirements of the interests of the general public. The legislature must take intelligent care and deliberation in choosing the course which is dictated by reason and good conscience so as to strike a just balance between the freedom in the article and the social control permitted by the restrictions under the article.
(c) No abstract or general pattern or fixed principle can be laid down so as to be of universal application. It will have to vary from case to case and having regard to the changing conditions, the values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances all of which must enter into the judicial verdict.
(d) The Court is to examine the nature and extent, the purport and content of the right, the nature of the evil sought to be remedied by the statute, the ratio of harm caused to the citizen and the benefit conferred on the person or the community for whose benefit the legislation is passed.
(e) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object which is sought to be achieved.
(f) The needs of the prevailing social values must be satisfied by the restrictions meant to protect social welfare.
(g) The restriction has to be viewed not only from the point of view of the citizen but the problem before the legislature and the object which is sought to be achieved by the statute. In other words, the Court must see whether the social control envisaged by Article 19 (1) is being effectuated by the restrictions imposed on the fundamental right. However important the right of a citizen or an individual may be it has to yield to the larger interests of the country or the community.
(h) The Court is entitled to take into consideration matters of common report history of the times and matters of common knowledge and the circumstances existing at the time of the legislation for this purpose.


In State of Keralaand Anr. v. N.M. Thomas and Ors., (1976) 2 SCC 310, also a seven-Judge Bench of this Court culled out and summarized the ratio of this Court in Kesavananda Bharati. Fazal Ali, J extracted and set out the relevant extract from the opinion of several Judges in Kesavananda Bharati and then opined: "In view of the principles adumbrated by this Court it is clear that the directive principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles. The directives thus provide the policy, the guidelines and the end of socio-economic freedom and Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles. So far as the courts are concerned where there is no apparent inconsistency between the directive principles contained in Part IV and the fundamental rights mentioned in Part III, which in fact supplement each other, there is no difficulty in putting a harmonious construction which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14 and 16 and their scope and ambit become as clear as day."

The message of Kesavananda Bharati is clear. The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or community as a whole. For judging the reasonability of restrictions imposed on Fundamental Rights the relevant considerations are not only those as stated in Article 19 itself or in Part-III of the Constitution; the Directive Principles stated in Part-IV are also relevant. Changing factual conditions and State policy, including the one reflected in the impugned enactment, have to be considered and given weightage to by the courts while deciding the constitutional validity of legislative enactments. A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations : first, that it does not run in clear conflict with the fundamental right, and secondly, that it has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution.

In Municipal Corporation of the City of Ahmedabad & Ors. v. Jan Mohammed Usmanbhai & Anr., (1986) 3 SCC 20, what was impugned before the High Court was a standing order issued by the Municipal Commissioner of the State of Ahmedabad, increasing the number of days on which slaughter houses should be kept closed to seven, in supersession of the earlier standing order which directed the closure for only four days. The writ petitioner, a beef dealer, challenged the constitutional validity of the impugned standing orders (both, the earlier and the subsequent one) as violative of Articles 14 and 19(1)(g) of the Constitution. The challenge based on Articles 14 of the Constitution was turned down both by the High Court and the Supreme Court. However, the High Court had struck down the seven days closure as not "in the interests of the general public" and hence not protected by Clause (6) of Article 19 of the Constitution. In appeal preferred by the Municipal Corporation, the Constitution Bench reversed the Judgment of the High Court and held that the objects sought to be achieved by the impugned standing orders were the preservation, protection and improvement of live-stock, which is one of the Directive Principles. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for our agricultural economy. They form a separate class and are entitled to be treated differently from other animals such as goats and sheep, which are slaughtered. The Constitution Bench ruled that the expression "in the interests of general public" is of a wide import covering public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution.

In Workmen of Meenakshi Mills Ltd. and Others. v. Meenakshi Mills Ltd. and Anr. , (1992) 3 SCC 336, the Constitution Bench clearly ruled  "Ordinarily any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest."

Similar view is taken in Papnasam Labour Union v. Madura Coats Ltd. and Anr. , (1995) 1 SCC 501. Directive Principles Long back in The State of Bombay and anr. v. F.N. Balsara, 1951 SCR 682, a Constitution Bench had ruled that in judging the reasonableness of the restrictions imposed on the Fundamental Rights, one has to bear in mind the Directive Principles of State Policy set-forth in Part IV of the Constitution, while examining the challenge to the constitutional validity of law by reference to Article 19(1)(g) of the Constitution.

In a comparatively recent decision of this Court in M.R.F. Ltd. v. Inspector, Kerala Govt. and Ors., (1998) 8 SCC 227, this Court, on a conspectus of its various prior decisions summed up principles as 'clearly discernible', out of which three that are relevant for our purpose, are extracted and reproduced hereunder. "On a conspectus of various decisions of this Court, the following principles are clearly discernible:
(1) While considering the reasonableness of the restrictions, the court has to keep in mind the Directive Principles of State Policy. ……..
(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances………………..
(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise.

Very recently in Indian Handicrafts Emporium and Ors. v. Union of India and Ors., (2003) 7 SCC 589, this Court while dealing with the case of a total prohibition reiterated that 'regulation' includes 'prohibition' and in order to determine whether total prohibition would be reasonable, the Court has to balance the direct impact on the fundamental right of the citizens as against the greater public or social interest sought to be ensured. Implementation of the Directive Principles contained in Part IV is within the expression of 'restriction in the interests of the general public'.

Post Kesavananda Bharati so far as the determination of the position of Directive Principles, vis-a-vis Fundamental Rights are concerned, it has been an era of positivism and creativity. Article 37 of the Constitution which while declaring the Directive Principles to be unenforceable by any Court goes on to say  "that they are nevertheless fundamental in the governance of the country." Several clauses of Article 37 themselves need to be harmoniously construed assigning equal weightage to all of them. The end part of Article 37  "It shall be the duty of the State to apply these principles in making laws" is not a pariah but a constitutional mandate. The series of decisions which we have referred to hereinabove and the series of decisions which formulate the 3-stages of development of the relationship between Directive Principles and Fundamental Rights undoubtedly hold that, while interpreting the interplay of rights and restrictions, Part-III (Fundamental Rights) and Part-IV (Directive Principles) have to be read together. The restriction which can be placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights.

In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428, a three-Judge Bench of this Court made it clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples' wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense, 'all the citizens placed together' and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State.

In Mohan Kumar Singhania & Ors. v. Union of India & Ors., 1992 Supp (1) SCC 594, a governmental decision to give utmost importance to the training programme of the Indian Administrative Service selectees was upheld by deriving support from Article 51-A(j) of the Constitution, holding that the governmental decision was in consonance with one of the fundamental duties.

In State of U.P. v. Yamuna Shanker Misra & Ors., (1997) 4 SCC 7, this Court interpreted the object of writing the confidential reports and making entries in the character rolls by deriving support from Article 51-A(j) which enjoins upon every citizen the primary duty to constantly endeavour to strive towards excellence, individually and collectively.

In Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors., 1986 (Supp) SCC 517, a complete ban and closing of mining operations carried on in the Mussoorie hills was held to be sustainable by deriving support from the fundamental duty as enshrined in Article 51-A(g) of the Constitution. The Court held that preservation of the environment and keeping the ecological balance unaffected is a task which not only Governments but also every citizen must undertake. It is a social obligation of the State as well as of the individuals.

In T.N. Godavarman Thirumalpad v. Union of India & Ors., (2002) 10 SCC 606, a three-Judge Bench of this Court read Article 48-A and Article 51-A together as laying down the foundation for a jurisprudence of environmental protection and held that "Today, the State and the citizens are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wild life and to have compassion for living creatures". 

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS