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MYSORE HINDU LAW WOMEN'S RIGHTS ACT, 1933

Nagamma vs Deveeramma 2001 (6) KarLJ 373 Mysore Act No. 10 of 1933 (Mysore Hindu Law Women's Rights Act, 1933) had been in force on the First day of January, 1934. The question is what is the effect of the provisions of this Act. This Act no doubt governs succession to interest in the property, after coming into force of the Act, it had the effect of regulating the succession to the property in case of a male Hindu dying intestate. The Act declare that it shall come into force on the first day of January 1934. The Act became applicable to persons who but for the passing of this Act, would have been subject to the law of Mitakshara in respect of matters for which the provisions are contained in the Act. Section 3 does not reveal that it is retrospective in operation.

High Court of Mysore in Hutcha Thimme-gowda v. Dyavamma, AIR 1954 Mys 93. The foregoing shows that the Mithakshara law in force in the former Princely State of Mysore was different from the law which was in force in the State of Madras. It could further be seen that the personal laws of Hindus in Madras as well as in the former Princely State of Mysore were amended by statutes passed by Legislature which were in force in the respective areas.
Chinnamma vs Srinivas AIR 1971 Mys 28, (1970) 2 Mys LJ Bench: C Honniah, E Venkataramiah It is well settled law that a Hindu belonging to Mithakshara School continues to be governed by the law in force in the area to which he belongs even though he may migrate to some other area, until it is proved that the family has adopted the Mithakshara law which is in force in the area to which the family has migrated. It is enough to refer In support of what is stated above to a decision of the Privy Council in Abdurahim v. Halimabai, AIR 1915 PC 86, in which it is observed as follows;-- "Where a Hindu family migrates from one part of India to another, prima facie, they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted....." The position would not be different even when a part of one State is taken out of that State and added on to another for administrative reasons. That was the view which was expressed by the Privy Council in Somashekara Royal v. Sugutur Mahadeva Royal, AIR 1936 PC 18, in which it was held that the mere transfer of a district to another presidency for administrative purposes was not sufficient to affect the personal law of the residents in that district, unless and until it was shown that in the case of any resident there that he had intended to change and had in fact changed his personal law. …….. The mere fact that Venkata-swamy had gone to Mysore in search of an employment cannot, therefore, be considered as sufficient to hold that there was change of his personal law unless it is shown that he intended to do so. Further, in this case it is to be seen that it is not pleaded in the plaint that there was any such change of personal law, applicable to the family of the parties to these proceedings on account of their intention to do so. This question is a question of law and fact and unless proper pleadings are placed before the court and necessary evidence is led in support of the pleadings, it would not be possible to hold that there was such a change in the personal law governing the family. ………… It may also be mentioned here that by virtue of the personal law of the parties derived from the texts which constitute the source of the law, the plaintiff would not be entitled to a share in the family properties on the ground that the properties have passed on to the hands of the sole surviving coparcener. Such a right was created for the first time by the Mysore Act of 1933 which came into force on 1-1-1934 in the former princely State of Mysore. So unless it is established that the parties to this suit were governed by the Mysore Act of 1933, the plaintiff would not be entitled to a share on the ground that the joint family properties passed to the hands of a sole surviving coparcener on the death of Venkataswamy.


High Court of Mysore in Keshava Anantha Dixit v. Rama Dixit, (1947) 25 Mys LJ 94. That was a case in which a Hindu male who belonged to a family that migrated to former Mysore State from Ranibennur in Dharwar District in the days of his paternal grand-father, died intestate in Mysore after the Mysore Act of 1933 came into force, leaving immoveable property in Mysore. He and his father who had pre-deceased him were born in Mysore after the migration. After his death the plaintiffs who were the sons of his mother's sisters, filed a suit claiming to be his nearest heirs according to the school of Hindu Law that prevailed at Ranibennur at the time of migration. The suit was resisted by the defendants who were the paternal grand-father's sister's sons of the Hindu male in question on the ground that they were the nearest heirs to succeed to his estate according to the Hindu Law Women's Rights Act of 1933 in force in Mysore. The Court found that the members of the family who migrated to Mysore had become the subjects of the Maharaja of Mysore, and, therefore, they were governed by the Mysore Act of 1933 which laid down a course of succession different from the one on which the plaintiffs based their suit.
High Court of Mysore in Chikka Kempegowda v. .Madaiya, (1951) 29 Mys LJ 64 in which it was held that the interest that was acquired in a joint family property by a Hindu female governed by Mitakshara under Clause (d) of Section 8 (1) of the Mysore Act of 1933, was a vested right which was heritable and transferable. This view of the former High Court of Mysore receives support from a decision of the Supreme Court in Nagendra Prasad v. Kempananjamma, AIR 1968 SC 209 . While construing the provisions of Section 8 (1) (d) of the Mysore Act of 1933 Bhargava, J-, speaking for the court observed as follows:-- "This example makes it clear that the scope of ascertainment of the females who are to receive a share under Clause (d) must be very wide, because Clause (d) mentions that when the joint family property passes to a single coparcener by survivorship, the right to shares is vested in all the classes of females enumerated in all the three Clauses (a), (b) and (c). That being the position, we do not think that Clause (d) can be interpreted narrowly as giving a right to only those females who happen to be related to one or the other of the last two male coparceners in the manner laid down in Clauses (a) and (b). In fact the language of Clause (d) has to be interpreted as laying down that right to shares will vest in all females of the joint Hindu family who would have possibly received the right to a share if at any earlier time there had been oarti-tion in the family in any of the three manners laid down in Clauses (a), (b) and (c). This intention can only be given effect to on the basis that Clause (d) does not restrict itself to finding out females on the basis of an assumed partition, between the last two male coparceners. It is significant that Clause (d) gives a right independently of a partition and we do not see why its scope should be restricted by assuming a partition. The reference to the earlier Clauses in this Clause must be held to be restricted to the sole purpose of ascertainment of the females falling under Clauses (a), (b) and (c). and once they are ascertained, it has to be held that each one of them becomes entitled to a share under this Clause. The object of Clause (d) is to give to all females entitled to maintenance from the coparcenery property a right to claim a share in the joint family property instead of a right to maintenance and that is why reference is made in it to all females enumerated in Clauses (a), (b) and (c)....." It is therefore clear from the observations of the Supreme Court extracted above, that females who are entitled to a share under Clause (d) of Section 8 (a) of the Mysore Act of 1933, acquire a vested right to a share as laid down by that section. There is no provision in the Mysore Act of 1933 which provides for a vested right being created in respect of a share of a joint family property on a second occasion when the joint family properties pass on the hands of a sole surviving coparcener during the lifetime of the same female who is entitled to a share under that provision.

Nagendra Prasad vs Kempananjamma AIR 1968 SC 209 :- Clause (a) of sub-s. (1) of s 8 of the Hindu Law Women's Rights Act 1933, provided that at a partition of joint family property between a person and his son or sons, those entitled to share with them would be his mother his unmarried daughters, and the widows and unmarried daughters of his predeceased undivided sons and brothers who had no male issue. Clause (b) provided that when the partition was between brothers, those entitled to share with them would be their mother, their unmarried sisters, and the widows and unmarried daughters of their predeceased undivided brothers who had left no male issue. According to cl. (c) clauses (a) and (b) would apply, mutatis mutandis, to a partition among other coparceners in a joint family. Clause (d) laid down that when a joint family property passed to a single coparcener by survivorship it would so pass subject to the right to share of the classes of females enumerated in the earlier clauses. Sub-s.(2) of s. 8 fixed the shares of the aforesaid relatives. Sub-s.(3), inter alia, defined the term 'mother' as including whether there were both a mother and a step-mother, all of them jointly, and the term 'son' as including a step-son, a grandson and a great grandson. It also provided that the Provisions of the section relating to the mother would be applicable, mutatis mutandis, to the paternal grandmother and great grandmother. …………… It is, however, to be noticed that s. 8, in conferring rights on females, envisages two different circumstances in which that right is to accrue to them. The first circumstance is when there is a partition of the joint family property between any co-parceners, and the other is when, though there is no partition, the entire joint Hindu family property passes to a single male owner. It is in both these cases that the Act envisages that the property may lose its character of co-parcenary property, because the co-parcenary body may cease to exist on partition or on survival of a single male member of the family. It seems that the purpose of S. 8 was to safeguard the interests of females in such contingencies where the co-parcenary property is to disappear either by partition or by survival of a sole male member. The legislature seems to have felt that, in such circumstances, it was not safe to leave the females entitled to maintenance, etc, at the mercy of the individuals who may receive property on partition or at the mercy of the individual in whom absolute rights in the property might vest as a result of sole survivorship. For the first contingency, when there is a partition, provision was made in clauses (a), (b) & (c) of sub-section (1) of S. 8 under which a right was granted to the females to ask for separation of their shares if the male members decided to have a partition. Unless the male members themselves sought a partition, it was not considered necessary to grant any right to the females themselves to ask for partition, because the property could not lose its character as co- parcenary property until the male members of the family sought partition. The right of the females under clauses (a), (b) & (c) of section 8(1), therefore, only arises at a partition between the male co-parceners forming the joint Hindu family.

HINDU JOINT FAMILY AND BUSINESS UNDER HINDU FAMILY AND SEPARATE BUSINESS EXPLAINED


In a case before Supreme Court in P.S. Sairam vs R.S. Rama Rao, Reported in AIR 2004 SC 1619, It is well-settled that the immovable property which stands in the name of individual member, it is presumed to be belonging to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business. …………………. Reference in this connection may be made to a decision of this Court in the case of G.Narayana Raju v.G.Chamaraju & Others 1968(3) SCR 464 wherein in a suit for partition defence was taken that business of Ambika Stores was separate business of defendant as the business did not grow out of joint family funds or at least by efforts of members of joint family which was accepted by the trial court as well as the High Court. When the matter was brought to this Court in appeal, upholding the judgment of the High Court, the Court observed thus at page 466:- "It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. "Explanation 1 to Section 6 of the Amendment Act lays down that for the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of the fact whether he was entitled to claim partition or not. This shows that for determining the interest of a male Hindu, a notional partition has to be assumed and the share in the joint family property, which could have been allocated to him in the notional partition, would devolve upon his heirs.

In the case of V.D.Dhanwatey v. The Commissioner of Income Tax, M.P.Nagpur (1968) 2 SCR 62, a Constitution Bench of this Court was also considering an appeal arising out of an order passed by the High Court on a reference. In that case, joint family funds were invested in a partnership business which enabled karta of the joint family to become a partner and when the remuneration was paid to him, it was assessed as income of the joint family and the view taken was upheld by this Court holding that as investment of the joint family funds in the partnership enabled a karta to become a partner and there being real and sufficient connection between that investment and the remuneration paid to the karta, the same has to be treated as income of the joint family. The Constitution Bench noticed the decision of this Court in the case of M/s Piyare Lal Adishwar Lal (supra) and, while approving the ratio of that case observed that as the remuneration earned by the karta was detrimental to the Hindu Joint Family funds, the High Court was justified in answering the reference against the assessee and in favour of the Revenue by holding that remuneration received by the karta was taxable in the hands of Hindu Undivided Family.






EXECUTION OF A WILL IS REQUIRED TO BE PROVED IN TERMS OF THE PROVISIONS OF S. 63(C) OF THE SUCCESSION ACT, 1925

The Hon’ble Supreme court of India in Rur Singh (D) Th. LRS. & Ors. Vs Bachan Kaur JUSTICE S.B. Sinha JUSTICE Dr. Mukundakam Sharma New Delhi February 12, 2009, Succession Act, 1925 : S. 63(c) - Execution of a Will is required to be proved in terms of the provisions of s. 63(c) of the Succession Act, 1925 and s. 68 of the Evidence Act, 1872. The Will was attested by nine independent persons. Three of them in fact had been examined. The High Court while holding that a doubt is cast on its validity by reason of active participation of one of the sons, failed to notice that nine other independent witnesses attested the Will. Importance cannot be attached to the fact that although the Sarpanch scribed the Will in Urdu, he at more than one place signed in English. In a village, a person may be more proficient in the vernacular language than English although he may be able to sign his name in English. If the Will was otherwise proved to be genuine and the statutory requirements therefor were satisfied, only because the panchayat register was not produced, the same by itself would not lead to the conclusion that the Will would be held to have not been executed, particularly when two courts competent to arrive at findings of fact held it otherwise.


WHEN SUCESSION HAS BEEN ALREADY OPENED IN STATE AMENDMENT, CENTRAL AMENDMENT DOES NOT TAKE AWAY SUCH RIGHT

Sheela Devi & Ors. v. Lal Chand & Anr. [(2006 (8) SCC 581], held: "21. The Act indisputably would prevail over the old Hindu law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of the Amendment Act, 2005 would have no application.” …….. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten, But once a son is born, it becomes a coparcenary property and he would acquire an interest therein.

STATUS OF GRANDSON IN CODIFIED HINDU LAW

Bhanwar Singh vs Puran Singh AIR 2008 SC 1490 “S. 6 of the Hindu Succession Act, 1956, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. S.8 of the Act lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grandson, so long as father is alive, has not been included. S.19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants.”

WHEN SUCESSION HAS BEEN ALREADY OPENED IN STATE AMENDMENT, CENTRAL AMENDMENT DOES NOT TAKE AWAY SUCH RIGHT

Sheela Devi & Ors. v. Lal Chand & Anr. [(2006 (8) SCC 581], held: "21. The Act indisputably would prevail over the old Hindu law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of the Amendment Act, 2005 would have no application.” …….. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten, But once a son is born, it becomes a coparcenary property and he would acquire an interest therein.

NOTIONAL PARTITION UNDER HINDU LAW

Anar Devi and ors vs Parameshwari Devi and ors AIR 2008 SC 3332, “Thus we hold that according to Section 6 of the Act (Hindu Succession Act) when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.

RIGHT OF MAINTENANCE OF HINDU WIFE

Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat and another, (1996) 4 SCC 479, has held: "According to the law of land with regard to maintenance there is an obligation on the husband to maintain his wife which does not arise by reason of any contract - expressed or implied - but out of jural relationship of husband and wife consequent to the performance of marriage. .. The obligation to maintain them is personal, legal and absolute in character and arises from the very existence of the relationship between the parties."

B.P. Achala Anand vs S. Appi Reddy & Anr AIR 2005 SC 986, A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a will to defeat such a right.

Gift of un-divided share by co-parcener

In a case before Supreme Court of India, in Venkata Subbamma vs Rattamma AIR 1987 SC 1775, it is explained in following words “A gift made by the coparcener to his brother should he construed as renunciation of his undivided inter- est in the coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift was, there- fore, valid and consent of other coparceners was immaterial.” ….. It is, however, settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners. Such recognition of alienations of copar- cenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor's shoes and to work out his rights by means of a partition. ….. The personal Law of the Hindus governed by Mitakshara school of Hindu Law is that a coparcener can dispose of his undivided interest in the coparcenary property by a will but he cannot make a girt of such interest. ……….. It is a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of other coparceners. Such a gift will be quite legal and valid…………. The parties are admittedly governed by the Mitakshara School of Hindu Law. The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.”

Possession of one co-sharer is treated as possession of other co-sharer also.

In a case before Supreme Court Vidya Devi vs Prem Prakash AIR 1995 SC 1789, By referring to following citations the point is clarified “In Karbali Begum Vs. Mohd Sayeed (AIR 1981 SC 77), it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee co-sharer. Certain observations of the Privy Council in Coera Vs. Appuhamy (AIR 1914 PC 243, 245-246) may be quoted below:- "Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title'..... His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result."

LAW IS A PRAGMATIC INSTRUMENT OF SOCIAL ORDER

In Carew and Company Ltd. v. Union of India [(1975) 2 SCC 791], Justice Krishna Iyer, opined: "21. The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical widom when he observed "There is no surer way to misread a document than to read it literally.""

For Rejection of Plaint under code of civil procedure only plaint averrments have to be taken into consideration

Hafeez and Ors Vs. Asif and Ors – Karnataka High Court Order on Apr 22 2010 Reported 2010 (5) KarLJ 60 Hon’ble Justice: Aravind Kumar, J. This is a defendants' revision petition questioning the correctness of the….. lower court order where under interlocutory application filed by the revision petitioners (defendants) under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 came to be dismissed.


FACTS OF CASE:- Plaintiffs sought for an order of perpetual injunction against the defendants, their men, agents, representatives, henchmen ………. The said suit was contested by the defendants. During the pendency of the suit an application under Order 7, Rule 11(d) read with Section 151 of the Civil Procedure Code, 1908 came to be filed by the defendants with a prayer to reject the plaint as same is barred by law. The said application was supported by an affidavit of 4th defendant. It was contended in the said affidavit that in respect of suit
schedule property the defendants' father had taken 15 guntas of agricultural land on tenancy basis from Kolad Mutt Mahasamsthanam during 1965 and during his lifetime he was cultivating the land by giving half share to the mutt. It was also contended that father of the plaintiffs late G. Khaleel had filed an application for registration of occupancy rights before land Tribunal and the Tribunal by order dated 19-4-1989 had ordered late G. Khaleel to be registered as occupant of the Schedule property. The said order came to be set aside by this Court in W.P. No. 25423 of 1993 by order dated 19-9-2001 and same came to be set aside at the instance of the mutt and was remitted back to the Land Tribunal. The matter is being adjudicated by the Special Deputy Commissioner for Abolition of Inams as the land was a Devadaya land and during pendency of adjudication before Tribunal, above said G. Khaleel expired on 17-7-2004 and his legal heirs were prosecuting the proceedings before the Special Deputy Commissioner. It was contended by the defendants that when the matter was pending before the Tribunal, the plaintiffs have filed the present suit to deprive the rights of the defendants. It was also contended that suit schedule property was in joint possession of both plaintiffs and defendants and the defendants have already got impleaded themselves before the Tribunal and as such the plea regarding joint tenancy has to be referred to the Land Tribunal under Section 133 of the Karnataka Land Reforms Act, 1961. Hence it was contended that the suit was not maintainable and barred by law.


COURT OBSERVATIONS AND CITED CITATIONS

Though several judgments are cited at the bar the same having been perused by this Court, following judgments would throw light on the questions formulated hereinabove which requires to be determined in the instant case and as such the following decisions are extracted.

Kamala and Others, v K.T. Eshwarappa and Others, AIR 2008 SC 3174 case, paras 15 and 16 "15. Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Rule 11 of Order 7 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code. Order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another.


16. For the purpose of invoking Order 7, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. All issues shall not be the subject-matter of an order under the said provision. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out there from is that the Court at
the stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the Court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for registration of plaint should be entertained".

Smt. Mallamma v Chenne Gowda, 2009(1) AIR Kar. 21; case:

"45. The Courts below have declined to grant the relief of possession to the plaintiff similarly on the ground that the land Tribunal has granted occupancy rights in favour of the 3rd respondent and therefore he is in possession. As such in view of the bar contained in the aforementioned sections the Trial Court cannot examine the said aspect of the matter. No doubt, a plain reading of the above provisions indicate that the Civil Court shall have no jurisdiction to deal with any question which is required to be settled or decided by the authorities mentioned in Section 132 and sub-section (2) further makes it clear that no order of the authorities mentioned therein shall be called in question in any Civil Court or Criminal Court and Section 133 further makes it clear by specifically mentioning that the Civil Court or Criminal Court shall not decide the question as to whether the land is not a agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1-3-1974.
46. A careful reading of the aforesaid clause (i) of sub-section (1) of Section 133 therefore gives an indication as to the exclusion of the jurisdiction of the Civil Court to deal with the questions referred to above in clause (i) of sub-section (1) of Section 133.



Mudakappa v Rudrappa, AIR 1978 Kant. 136:

"12. Section 132 provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Deputy Commissioner, the Assistant Commissioner, the Tribunal, the Tahsildar, the Karnataka Revenue Appellate Tribunal or the State Government in exercise of their powers under the Act. It also further provides that no order of the Deputy Commissioner, the Assistant Commissioner, the Tribunal, the Tahsildar, the Karnataka Revenue Appellate Tribunal or the State Government made under the Act shall be questioned in any Civil or Criminal Court. The consequence of an agricultural land being held by a lessee immediately prior to 1-3-1974 is that with effect on and from the said date, it would stand transferred to and become vested in the State Government by virtue of Section 44(1) of the Act. The tenants holding such lands, would as against the State Government, be entitled only to such rights or privileges and would be subject to such conditions as provided by or under the Act. Any other rights or privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person would cease and would not be enforceable against the State Government. Under Section 45 of the Act, every tenant would be entitled subject to such restrictions and conditions that are imposed by the Act to be registered as an occupant in respect of the lands of which he was a tenant before the date of vesting and which he had been cultivating personally. Section 48-A prescribes the procedure to be followed by a person entitled to be registered as an occupant under Section 45. For securing such registration, he has to make an application to the Tribunal constituted under the Act for that purpose in accordance with law. Under sub-section (5) of Section 48-A, where an objection is filed disputing the validity of the applicant claim or setting up a rival claim, the Tribunal is required to hold an enquiry and determine whether the applicant is entitled to be registered as an occupant or not. Section 112(B) expressly requires the Tribunal to make necessary verification or hold an enquiry in all cases relating to registration of a tenant as an occupant under Section 48-A. Section 133 of the Act, states that when, in any suit or proceedings concerning a land, the question whether such land is or is not an agricultural land or whether the person claiming to be in possession is or is not a tenant of the said land prior to 1st March, 1974, arises for consideration, such question should be referred to the Tribunal for its decision and the suit or proceedings should be disposed of in accordance with the finding of the Tribunal on the above question. When, as in this case, one person applies for registration of the lands as an occupant in his individual name and three others apply for registration of the said lands in their name along with the other applicants as joint occupants, it becomes the duty of the Tribunal to decide whether only one of them was the sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants. Without deciding the said question, it would not be possible for the Tribunal to make an effective order under Section 48-A of the Act. In order to decide the said question, it becomes necessary for the Tribunal to decide whether the tenancy in question was held by one of them exclusively or by all the applicants jointly. We have to hold that under Section 48-A, the Tribunal has that power having regard to the scope of that section. Whenever a statute confers a duty on an authority to decide a question and a corresponding right on an individual or individuals it has to be assumed that the statute, has, by necessary implication conferred on that authority the power to decide all issues which are incidental and ancillary to the main question to be decided. Otherwise the Tribunal will have to keep all the applications pending until such issues are decided by the Civil Court. In fact there is no procedure prescribed by the Act to refer such issues for the decision of the Civil Court. We do not think that it would be reasonable to hold that the Tribunal should await the decision of the Civil Court on such issues, in view of sub-section (5) of Section 48-A, which requires the Tribunal to hold an enquiry into all rival claims made in respect of the registration of the occupancy rights in respect of the agricultural lands before disposing of the applications made to it. We, therefore hold that the land Tribunal is competent to decide for the purpose of disposing of the applications under Section 48-A the question whether the leasehold rights were held exclusively by the appellant or by the joint family consisting of the appellant and the respondents before the partition took place and thereafter by all of them as co-tenants till the appointed day. It is its duty to do so under the Act. The said question could not therefore be decided by the Civil Court in view of Section 132 of the Act".


Mudakappa v Rudrappa, 1996(6) Kar. L.J. 129 (SC), paras 7 and 8:

"7. In Chapter III heading is conferment of ownership on tenants. A conspectus of the provisions establishes the gamut of operation of the Act, namely, conferment of ownership of tenancy rights of the lands vested in the State Government. The pre-existing right, title and interest of the landlord in relation to the lands in possession of the tenant, even against whom a decree or order for eviction or a certification for assumption was made or issued immediately prior to the date of the commencement of the Amendment Act other than the lands held by them under leases permitted under Section 5, with effect on and from the said date, i.e., March 1, 1974 stand transferred to and vested in the State Government. In other words the pre-existing relationship of the tenant with the landlord stood extinguished from the date of vesting in the State Government. By operation of non obstante clause of sub-section (2) of Section 44, the lands which were resumed by or in any contract, grant or other instrument or in any other law for the time being in force with effect on and from the date of vesting and save as otherwise expressly provided in the Act shall cease. The consequences enumerated thereunder shall ensue, namely, all rights, title and interest held by the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances. Consequently the pre-existing right, title or an interest of the owners of such lands shall cease and be vested absolutely in the State Government free from all encumbrances. Pending finalisation of the registration with the State Government of a tenant, his possession of the land is protected and he should not be dispossessed. Section 45 gives right to the tenant to be registered as an occupant of land on specified conditions enumerated in Section 45 and the provisions of the succeeding Chapter. Every tenant who is personally cultivating the land shall, with effect from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting. The pre-existing tenancy rights with predecessor landlord have been extinguished and new rights have been created by the statute which would be ensued under the Act creating direct tenancy relationship with the State as a tenant. Section 48-A constitutes the forum and enjoins it to enquire into the application registered by it. It should direct every person entitled to be registered as an occupant under Section 45 to make an application to the Tribunal in that behalf within the time specified thereunder. On receipt of such application, the Tribunal should publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the specified date. Personal notice shall be served on the persons named in the application or otherwise found to be entitled to be heard. By operation of Explanation II to Section 2(A)(11) if the land is being cultivated by or on behalf of the joint family or by any one of the members of the joint family, it should be deemed that the joint family is personally cultivating the land. The Joint family is, therefore, the tenant and the land is lawfully in occupation of the joint family as a tenant. Sub-section (5) of Section 48-A postulates that when an objection is filed disputing the validity of the applicant's claim or set up a rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as tenant and pass orders accordingly. Therefore, when rival claims were set up for tenancy right and entitlement for registration, it is incumbent upon the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. Thereon an order should accordingly be made by the Tribunal and it would become final. Thereby it is clear that the Act extinguishes the pre-existing right, title and interest of the landowners as well as those who were inducted into possession by the erstwhile landholders. The new rights have been created in the Act itself in favour of the tenant in personal cultivation to claim registration as tenants so as to continue to enjoy the occupancy rights as a tenant as enumerated under Section 45. A forum was created and the forum is enjoined to enquire into not only the nature of the land but also the entitlement for registration as a tenant. When inter se rival claims for tenancy rights have been set up, it has been empowered with jurisdiction to decide that question as to who is the tenant in possession of the land prior to the date of vesting and entitled to be registered as a tenant with the State Government and its decision shall be final. The Civil Court's jurisdiction under Section 9 of CPC by necessary implication, therefore, stood excluded.

8. It is seen that the words tenant', 'the Tribunal' and the 'joint family have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Article 227, as the case may be. But that cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from Section 48-A(5) and Section 112(B)(bbb) read with Section 133, that the decision of the Tribunal is final under Section 133(l)(iii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to dealt with by the Civil Court".



Mayar (H.K.) Limited and Others v Owners and Parties, Vessel M.V. Fortune Express and Others, AIR 2006 SC 1828 : case, Paras 11 and 12:

"11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.

12. Similarly, the Court could not have taken the aid of Section 10 of the Code for stay of the suit as there is no previously instituted suit pending in a Competent Court between the parties raising directly and substantially the same issues as raised in the present suit".



Doddamma v Muniyamma and Others, 2005(3) KCCR 1602; case, para 21:

"(21) It is clear from the above said provisions of the Inams Abolition Act and the provisions of the Land Reforms Act that so far as the rights of the tenants are concerned, the provisions of the Karnataka Land Reforms Act are similar to the provisions of the Inams Abolition Act though the provisions may not be similar in respect of the owners of the land under Karnataka Land Reforms Act and Inam holders and inamdars under the Inams Abolition Act. However, so far as the tenants are concerned, the effect of the above said proceedings is that from the appointed date, the relationship of the landlord and tenant ceases and the property vests with the Government and the tenant is entitled to conferment of occupancy right as per the provisions of the Inams Abolition Act. The object of the Inams Abolition Act as already culled out from the observations made in Muniraj and Another v Karnataka Appellate Tribunal, Bangalore and Others, 2004(3) Kar. L.J. 570 is to see that the application attached to the inams are abolished by vesting of the property in the State and the tenants would get occupancy right under the Inams Abolition Act and in substance, there is change of tenure and property would vest with the State absolutely free from all encumbrances and the relationship of landlord and tenant ceases and on conferment of occupancy right, the tenant would get the right under the Inams Abolition Act. While considering the provisions of the Karnataka Land Reforms Act and dealing with the question as to whether the occupancy right granted in favour of a member of the joint family would ensure to the benefit of all the members of the Joint Family and whether a civil suit can be filed for partition and separate possession in respect of the occupancy right that is granted under the Karnataka Land Reforms Act, the Hon'ble Supreme Court in the case of Balawwa and Another v Hasanabi and Others, (2000)9 SCC 272 has observed as follows:-
"7. Having examined the provisions of the Karnataka Land Reforms Act and the aforesaid two judgments of this Court, we have no doubt in our mind that the Civil Court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well-settled that when a special Tribunal is created under a special statute and the jurisdiction of the Civil Court is sought to be ousted under the said statute, it is only a respect of those reliefs which would be granted by the Special Tribunal under the special statute, the jurisdiction of the Civil Court cannot be said to be ousted. 8. Looking at the provisions of Section 48-A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the Civil Court. Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an applicant provided the preconditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position, and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned Counsel for the appellants is, therefore, devoid of any force. 9. Coming to the second contention, as it appears, the decision of the learned Trial Judge granting the relief of partition in respect of two houses has not been assailed. The plaintiff is one of the daughters of Imamsab. Defendant 1 happens to be the widow of the son of Imamsab and defendant 3 is the husband of the other daughter of the said Imamsab. All these persons had a right in the property left by Imamsab. In this view of the matter, the High Court as fully justified in coming to the conclusion that the so-called order of the Land Tribunal under the Karnataka Land Reforms Act would enure to the benefit of the other members who were otherwise eligible for a share in the property in question. Therefore, we see no infirmity with that conclusion so as to be interfered with by this Court"".


A Division Bench of this Court in Appi Belchadthi and Others v Sheshi Belchadthi and Others, 1982(2) Kar. L.J. 565 (DB); has observed as follows:- "18. The questions such as, the existence of a joint family, the rights of the members thereof, the position and power of the manager, and the nature of the property acquired by them are not so simple to the decided by a summary enquiry, and that too without the assistance of trained lawyers. The Joint Hindu Family or coparcenary is a creature of Hindu law. The status of every Hindu family is presumed to be joint, joint in food, worship and estate. That presumption is stronger in the case of brothers. Once the family is proved to be joint, that presumption continues until it is rebutted. Those who allege separation must prove unless it is admitted that there was a separation at some point of time. The question as to whether a particular family retains its character of jointness at a particular time is a difficult question for decision. Mere severance in food and worship does not effect a separation of the family nor separate residence by members operates as a severance of the joint status. We are only mentioning some of these principal features to impress upon that the decision on these questions requires a lot of brooding even by Courts of law. One could only imagine the difficulties of Tribunals without proper wherewithal".


The same principle is reiterated by the Division Bench of this Court in K. Guruvappa and Another v Smt. Manjappa Hengsu and Others, 1985(1) Kar. L.J. 51 (DB): ILR 1985 Kar. 386 (DB). It is clear from the above said observations made by this Court that effect of abolition of the relationship of landlord and tenant or vesting of the property in the State and conferment of occupancy right on the tenant would only result in the change of tenular of the tenant as the same would not affect the personal inam of the parties. When there is a rival claim before the Land Tribunal with regard to the fact that the tenancy is individual or joint family tenancy, the Tribunal is bound to decide the said question while considering the rival applications filed by the members of the family. However, when application for conferment of occupancy right is filed by one of the members of the family, conferment of the occupancy right on the said applicant, would not preclude and other members of the family to contend that the said tenancy is the joint family tenancy and that they are entitled to partition and separate possession of the shares. Under the Inams Abolition Act, no power is given to the Competent Authority to pass a decree for partition and what is required to be considered by the authorities is only as to whether the applicant is entitled to conferment of occupancy right as a tenant under Section 5 of the Inams Abolition Act, which is relevant for the purpose of this case to decide the question as to whether he was a permanent tenant on the date of vesting.

In a recent decision of this Court where there was divergent opinion between two Judges of this Court and the matter was referred to a third Bench, the learned Judge has observed as follows in Parushuram Nemani Kuduchakar and Others, v Smt. Shantabai Ramachandra Kuduchakar, 2004(6) Kar. L.J. 275: ILR 2004 Kar. 3355; after referred to the relevant provisions of the Karnataka Land Reforms Act:
"(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claims by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does not decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition".


DECISION:- A perusal of the order passed by the Trial Court it is seen that said order does not suffer from either jurisdictional error or it suffers from any material irregularity. The suit being at the stage of further cross-examination of P. W. 1 it would not be desirable to reject the plaint on the basis of the averments made in the written statement and which cannot also be embarked upon by this Court. Hence, ………… is answered by holding that the order of the Court below does not suffer from any error or infirmity. ……… Accordingly, the following order is passed: The revision petition is dismissed as devoid of merits.

WHAT IS EXPECTED FROM A JUDGE

On the aspect of sub-conscious mind, what Justice Frankfurter said for not participating in the decision of Public Utilities Commission of the District of Columbia, Capital Transit Company & Washington Transit Radio, Inc. v. Franklin S. Pollak & Guy Martin. [343 US 451], is quite enlightening. It reads:- "The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact."

MIS-BEHAVIOUR, MISCONDUCT AND ABUSE OF OFFICE BY CONSTITUTIONAL AUTHORITIES

In Re.. vs Mehar Singh Saini,Chairman Hpsc & ... Decided on 12 November, 2010 by Supreme Court of India in exercising advisory jurisdiction over the reference made by President of India, seeking advice whether State Public Service Commission members can be removed over alleged illegalities and irregularities, Bench consisting of Justice : S Kapadia, K P Radhakrishnan, S Kumar, held in affirmative.

FACTS:- Several members and Chairman of HPSC was appointed by Haryana Govt just before election code of conduct. During their tenure, the Commission had made selections and recommended candidates for appointment to various posts in different cadres of the State. Subsequently, it came to the notice of the Government that various irregularities and illegalities, such as acts of favouritism, discrimination and violation of rules/regulations had been committed by the Commission in the process of selection made by them. After conducting preliminary enquiries, the Government claims to have initiated vigilance enquiries as well as First Information Reports were registered for the alleged irregularities, illegalities and acts of commissions and omissions by the Chairman and Members of the Commission. This resulted in the Chief Secretary, Government of Haryana, writing a letter dated 18th December, 2006, to the Secretary to the Governor of Haryana, requesting him to refer the matter to the President of India at the earliest for removal of the Chairman and Members of the Commission in terms of Article 317(1) of the Constitution of India. It was averred that the Chairman and Members of the Commission were guilty of misbehaviour, as mentioned under Article 317(1) of the Constitution. It was also averred that they do not possess requisite qualification, experience and had been appointed to the coveted offices only to achieve political ends. In this letter, detailed facts were given about the qualifications, experience and credentials of the Chairman and Members of the Commission with definite emphasis on the fact that they had made appointments contrary to the rules and with favouritism. Their conduct in making selection to different posts was an exercise in subversion of the constitutional protections rather than sub-serving, the interest of the Constitution. After receiving this Reference, the Governor of Haryana, vide letter dated 16th January, 2007, forwarded it to the President of India with supporting documents and records for consideration. The President, after examining the records, referred the matter to this Court under Article 317(1) of the Constitution for inquiry and report, as to whether the existing Chairman and Members of the Commission ought to be removed from the office on the alleged grounds of misbehaviour.

ALLEGATIONS & CHARGES ELICITED IN JUDGEMENT 

Government of Haryana it appears that there were serious irregularities in the appointments made to the posts of Chairman and Members of the Haryana Public Service Commission, which were made without due regard to their qualifications, experience, status and accomplishments, required for appointment to the said constitutional posts.

….. One selection committee chairman, Recommended the name of …… one candidate….. for the post of Drug Inspector on the basis of a bogus certificate for which an investigation was conducted by the State Vigilance Bureau, Chandigarh and subsequently an FIR was registered against these persons for various offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 and for which these persons were arrested and challan has already been filed in the Trial Court.

Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.

Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.

However, it is the case of the Government and the investigating agencies that the Commission did not cooperate at all and the records, despite repeated demands, had not been handed over to them. As a result of non- cooperation by the Chairman and Members of the Commission, proceedings in the Court were initiated in which, ultimately, the High Court of Punjab and Haryana in Haryana Public Service Commission v. State of Haryana (Writ Petition no.12593 of 2005) [(2005)141 PLR 486], passed an order dated 12th August, 2005 making certain observations against the conduct of the Commission, its Chairman and Members.

That Shri Mehar Singh Saini is a beneficiary of favouritism and nepotism in the matter of his appointment as Chairman of the Haryana Public Service Commission. His qualifications, experience, status and accomplishments namely that of a private practitioner in Ayurveda (BAMS), were not of the stature required for appointment to the Constitutional position of Chairman of the Haryana Public Service Commission. His appointment, after obtaining resignation of then Chairman, was with a view to ensuring that he would further the objectives of the political party then in power. By, thus, conniving in the subversion of the constitution, he is guilty of misbehaviour under Article 317(1) of the Constitution.

That the malicious acts of influencing his subordinates to carry out intended manipulations to favour desired persons in selections and endorsement of such illegal selections as member of the Commission by Sh. Mehar Singh Saini constitute an act of grave misbehaviour warranting invocation of Article 317(1) of the Constitution of India for his removal.

That Sh. Mehar Singh Saini abused his public office and showed his dubious act and conduct by defending the above mentioned patently illegal acts which constitute an act of grave misbehavior warranting invocation of Article 317(1) of the Constitution of India for his removal.

…..Wrongly and unlawfully decided to file a written reply on behalf of the Haryana Public Service Commission to the inspection reports………., attempting to justify the illegalities regarding the manipulations, interpolations and forgeries committed during the selection process of Haryana Civil Services (Executive & Allied), which was finalized by the Commission in 2002.

…..Had taken a decision not to hand over the record to the investigating agency on the pretext that the State Public Service Commission, being a constitutional authority, enjoys a distinct status, despite the fact that the Hon'ble Punjab and Haryana High Court and Hon'ble Apex Court were pleased to direct the Commission to co-operate with the investigating agency. This deliberate act on their part clearly amounts to misbehaviour as envisaged under Article 317(1) of the Constitution of India for their removal."

It is the case of the State Government that after noticing the irregularities and favouritism on a mass scale and on suspicion of serious charges of corruption against the Chairman and Members of the Commission, the Governor of Haryana had passed an order dated 9th August, 2008 suspending the Chairman and the Members of the Commission. The validity and legality of this order of suspension was questioned by the affected Chairman and Members of the Commission by filing a petition under Article 32 of the Constitution before this Court, which came to be dismissed by a detailed order dated 7th August, 2009 reported as Ram Kumar Kashyap v. Union of India [(2009) 9 SCC 378]. The relevant extract of the order reads as under: "16. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Hon'ble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed. The writ petitions are dismissed."

OPPONENT’S CONTENTIONS :- 

Court has to conduct its inquiry and record its finding in the report only in relation to the articles of charge referred to by the President in exercise of its powers under Article 317(1). Thus, this Court has no jurisdiction to go into the merit or otherwise of the said additional articles of charge. It is his submission that it is not an omnibus Reference. Further, it is argued that there is no evidence on record to substantiate any of the approved articles of charge, even if it is assumed for the sake of argument that the Court can examine all the approved articles of charge. Thus, it is stated that the Presidential Reference to this Court is ex facie a case of no evidence but political vendetta alone. It was also contended that the entire evidence produced in respect of the allegations has not been tendered in accordance with law. A police officer cannot prove the allegations merely by filing an affidavit. Thus, it is no evidence in the eye of law. In regard to charge , relating to qualification and status of the Chairman and Members of the Commission, it is argued that this approved article of charge itself suffers from infirmity of non-application of mind as no qualification or status has been prescribed under Article 316 of the Constitution for such appointment.

COURT OPINION AND QUOTED CITATIONS 

In law, it may not be possible to examine charges which are entirely independent and unconnected with all or any of the articles of charge stated in the Presidential Reference. There has to be some link or inter-connection between the articles of charge subsequently suggested before this Court and the original articles of charge referred by the President. The question of any prejudice to the delinquent will not arise inasmuch as the concerned party is given full opportunity to challenge the articles of charge as well as the evidence led in support of charges by the Government, during the process of inquiry before this Court. A plain reading of these Rules (Supreme Court has framed the following rules under Part VI, Order XXXVIII of Supreme Court Rules, 1966 for conducting inquiry under Article 317(1) of the Constitution) clearly shows that no detailed procedure has been provided so far, as to how and in what manner the inquiry shall be conducted and what shall be the scope of the inquiry and the manner in which the evidence shall be recorded. In other words, it has been left to the discretion of this Court to follow a procedure which is in consonance with the language of Article 317(1), read with the above Rules and principles of natural justice.

In the Matter of Reference under Article 317(1) of the Constitution of India [(1983) 4 SCC 258] this Court, while dealing with this aspect, clearly stated that the Court can appoint any officer of the Court, or direct an Additional/Sessions Judge or any other Judge, to record evidence. Evidence, as far as practicable, has to be recorded in accordance with the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order XIX of the Code of Civil Procedure, 1908. After recording of evidence, the matter is to be placed before the Court for regular hearing upon which, the Court is expected to make a report of its findings on the misbehaviour of the Chairman/Members of the Commission.

We may usefully refer to a recent judgment of this Court In Re: Smt. Sayalee Sanjeev Joshi [(2007) 11 SCC 547]. In this case the President had made a Reference under Article 317(1) of the Constitution relating to various aspects of misbehaviour alleged to have been committed by Smt. Joshi, Member of the Maharashtra Public Service Commission. The preliminary steps were completed under the directions of this Court and after issue of notice, the Court requested the Attorney General for India to scrutinize the materials. Originally 22 charges were proposed, then they were reduced to 6 charges and finally Charges 3 & 6 were dropped as they were not strictly within the purview of the Presidential Reference and related to conduct entirely subsequent to and independent of the misbehaviour complained of. Thus, the charges were framed/approved by the Court vide order dated 5th October, 2005 in Reference No. 1 of 2004. The evidence was led by the parties and Smt. Joshi's conduct was found to be misbehaviour of the kind which would justify her removal from the office.

This Court, in the case of Supreme Court Advocate-on-Record Association v. Union of India [(1993) 4 SCC 441], held that the Supreme Court being the highest Court of the land, its vitality is a national imperative. The primary institutional task of this Court is to clearly understand the true message that the Constitution intends to convey; second, to assert the original meaning in that message in the light of the constitutional provisions; and third, to pronounce what the law is, in harmony with meaningful purpose, original intent and true spirit of the Constitution. As a result of the above discussion, we are of the considered opinion that the inquiry proceedings before the Supreme Court cannot be circumscribed by the Presidential Reference under Article 317(1) of the Constitution stricto sensu that too to the extent that the Court cannot examine any additional facts/subsequent events having a direct bearing, additional or supplementary articles of charge which are explanatory or intrinsically related with the charges specified in the Presidential Reference.

SERVICE JURISPRUDENCE IS NOT APPLICABLE HERE:- The proceedings prima impressionis may appear akin to the service jurisprudence as commonly understood. The basic requirements for the applicability of service jurisprudence are relationship of employer and employee, alleged misconduct being in breach of the rules/regulations controlling the conditions of service of such an employee and such charges then are to be proved in accordance with the specified procedure for imposition of minor and major penalties. The departmental proceedings have to be conducted in accordance with the specified rules and regulations. The concept of departmental enquiry under the service jurisprudence cannot be equated with the proceedings in an inquiry under Article 317(1) of the Constitution. This distinction is a marked one. Keeping in mind the constitutional protections available to the Chairman and Members of the Commission, the stature they enjoy and the duties that they are expected to perform, the principles of service jurisprudence cannot be strictly applied to these proceedings. As already noticed, the power to remove the Chairman/Member of the Commission is exclusively vested in the President and not even in their appointing authority. The appointments to the State Commissions are made by the Governor but still in the wisdom of the framers of the Constitution, the power to remove them from office has not been vested in the Governor. This reflects the kind of autonomy that the framers of the Constitution bestowed on the Chairman/Member(s) of the Commission to ensure proper and fair performance of the functions of the Commission. The Chairman and Members of the Commission are not Government servants, as commonly understood, though they may be holding a public office. The standard of burden of proof as postulated under service jurisprudence may, to some extent, be applicable to these proceedings. Principles of service jurisprudence may not be strictly applicable to the inquiry proceedings under Article 317(1) of the Constitution. Inter alia, it is for the reason that being constitutional body, the Chairman and Members of the Commission are to maintain much higher standards of performance and behaviour than the civil servants appointed to the state services.

CRIMINAL JURISPRUDENCE IS ALSO NOT APPLICABLE HERE:- The next limb of the same argument is with regard to applicability of principles of criminal jurisprudence to the present proceedings in regard to opportunity of being heard, burden of proof and content of charges. The principles of criminal jurisprudence contemplate different standards of proof, language of charge and protections available to a suspect/accused. It is neither practicable nor possible to apply the norms of criminal law to the proceedings under Article 317(1) of the Constitution of India. In criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability. Under the service jurisprudence, a person may be found guilty even on the charge being proved on the basis of preponderance of probabilities while in the proceedings of the present kind, conduct of a person may amount to misbehaviour requiring his removal under Article 317(1) of the Constitution on the basis of rule of reasonable preponderance of probabilities. This distinction is fully justified with reference to the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis.

DROPPED CHARGES:- The alleged malicious acts of influencing the subordinates to carry out the intended manipulations to favour desired persons and abuse of the public office and defending the illegal acts referred to in approved article 6 of the charges, therefore, cannot be gone into by this Court. We have already held that this Court can examine explanatory, incidental or intrinsically inter-connected charges to the charges mentioned in the Reference and in that respect can take note of additional facts, take evidence and examine the entire record before it. But where the charges, apparently and in substance, are new and do not appear to be justifiable on the basis of the record and there is no direct evidence to substantiate them, it may not be in the ends of justice that this Court should examine those articles of charge in the present inquiry.

WHAT IS MISBEHAVIOUR AND MISCONDUCT:- In Article 124(4) "misbehaviour" means wrong conduct or improper conduct. It has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or the statute under consideration. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct implies a creation of some degree or mens rea by the doer. Willful abuse of constitutional office, willful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform duties or willful abuse of the office would be misbehaviour…………….Needless to notice neither misbehaviour nor misconduct has been defined in the Constitution or even in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Once an expression has not been defined, then it must be understood and explained in its common parlance, keeping in view the object sought to be achieved.

In the case of R.P. Kapur v. S. Partap Singh Kairon [(1961) 63 Punj LR 780], the Court explained the term `misbehaviour' while dealing with the matter under the Public Servants (Inquiries) Act, 1850 and held that misbehaviour qua proceeding under that Act, in absence of definition, is a word of very wide import. `Misbehaviour', when employed in respect of holders of high offices, has a well understood and well defined meaning according to the tradition and standards maintained by the members of a particular service or office.

This Court had the occasion to deal with the expression misconduct in the case of Narotanmal Chouraria v. M. R. Murli [(2004) 5 SCC 689] wherein the Court referred to its earlier judgment in the case of State of Punjab v. Ram Singh Ex- Constable [(1992) 4 SCC 54] and referred to paragraph 6 of that judgment with approval and held in paragraph 10 and 11 of the judgment as under : "10... "6. Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."

This Court in the case of Union of India v. J. Ahmed [(1979) 2 SCC 286], while dealing with disciplinary proceedings, under the service law, explained the term `misconduct' to mean conduct not expected of a member of service, conduct in a manner inconsistent with due and faithful discharge of duties and service or gross or habitual negligence in performance of duties. `Proved misbehaviour' is an expression clearly distinguishable from the above terms of `misbehaviour' and `misconduct' as is apparent from the language of Article 124(4) of the Constitution. Intent, gravity and onus are of a much higher degree. The prefix `proved' places an obligation of actually proving the misbehaviour before the parliamentary procedure for removal of a Judge can come into play.

All these expressions fall under different domains of jurisdiction and operate in distinct and different fields. The distinction, primarily, is that of degree, intent and expected standard required to be maintained in relation to the office that the delinquent holds. Onus of proof and severity of misconduct will be relatable to the office one is holding. Misconduct may relate to graver acts, deeds and omissions while misbehaviour may relate to the standards expected to be maintained by the holder of the constitutional office. In other words, misbehaviour/misconduct could be used interchangeably in certain circumstances while in other they may have to be understood as clearly distinguishable. `Misbehaviour' may include behaviour that was not expected of the holder of the constitutional office but would not include `grave misconduct' or `proved misbehaviour'. This distinction has to be kept in mind by this Court where the constitutional mandate refers to `misbehaviour' which is an expression of very wide magnitude.

They occupy a unique place and position; utmost objectivity in the performance of their duties, integrity and detachment are essential requirements for holding these high constitutional offices.  Similarly, in the case of Inderpreet Singh Kahlon v. State of Punjab [(2006) 11 SCC 356], this Court in exercise of its appellate jurisdiction was concerned with allegations against the Chairman of the Punjab Public Service Commission that in discharge of his duties, he had selected persons for extraneous as well as monetary considerations during 1996 to 2002. For such conduct and selections, FIRs had been registered in that behalf while the selection of the appointed candidates was also challenged. While dealing with these allegations, the Court held as under: "102. This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."

CHARGE 1 NOT PROVED:- In regard to approved article of charge 1, we find that there is hardly any direct oral or documentary evidence. While this charge relates to lack of qualification, experience and stature, the Governor's letter to the President states that these persons influenced the Government in making their appointments. Of course, it is expected that persons being appointed to such high office should not use any influence or pressure or take favour from the Government in power but at the same time that fault would have to be traced to the processing and the appointing authority rather than the candidate alone. ……. The constitutional provisions do not provide any qualification for Official/Non-official Members. It also does not provide any experience in any particular field or office for Non-official Members. In the case of an Official Member, it is nowhere spelt out as to which cadre in the official hierarchy, he should have experience of 10 years. In these circumstances, we find that the Government has failed to prove Charge 1 and we hold the respondents not guilty of any misbehaviour as contemplated under Article 317(1) on this count.

CHARGE 2 PROVED:- This charge has been framed against four of the nine private respondents. It is alleged that ………… as members of the Selection Committee recommended the name of Pradeep Sangwan for the post of Drug Inspector on the basis of bogus experience certificate. It was contended that selection ……….. was, thus, arbitrary and constituted misbehaviour under Article 317(1) of the Constitution. In regard to the irregularities committed, an FIR being …………. lodged; during investigation and on further inquiry by the State Vigilance Bureau, various documents have come to light which show that selection of Pradeep Sangwan was arbitrary and was made in a manner, which is not acceptable in law. Pradeep Sangwan did not possess the requisite essential qualifications and experience. A complaint against his selection was filed by one Rakesh Walia. Despite this, the candidate was not only selected but also recommended on the basis of the bogus experience certificate and subsequently appointed to the post of Drug Inspector by the State Government. The documents, which are on record and have been referred by the learned counsel in that behalf, are the application form and certificates submitted by the candidate, statements of witnesses including the witness from M/s. Zee Drugs, whose certificate was produced by the candidate for the purpose of satisfying the essential condition of experience before the Selection Committee.

DEFENCE RAISED ON THE CHARGE:- The counsel appearing for the Commission has not even attempted to deny these averments and the charge against these Members. However, on behalf of four private respondents, it is contended that it was not for the Members of the Selection Committee to verify the contents of the certificate. ………………….. It is also argued that if Pradeep Sangwan has obtained a bogus certificate then, at best, he can be said to have committed some offence and that cannot be understood as an instance of misbehaviour on the part of the private respondents. Further, the contention is that there is no evidence to support this charge. Discrepancies in date of filing of application, manipulation of date, withholding of original certificates by respondents from expert verification, non verification of records of candidate, and other documentary evidence As a result of documentary verification and discussion over it, Supreme court considered the charge in these words ”we are of the considered view that the conduct of the Members of the Commission, in processing the application of Pradeep Sangwan, endorsing and approving his name for the interview, selecting him and finally recommending his name for appointment to the post of Senior Drug Inspector, does not meet the standards of behaviour, integrity and rectitude required to be maintained by the office they were holding. Thus, their behaviour with respect to this article of charge would certainly fall within the ambit of misbehaviour justifying their removal from office.”

OTHER CHARGES HELD PROVED :- Approved articles of charge 3, 5, 8 and 9 pertaining to alleged acts, omissions and commissions amounting to misbehaviour have been framed against all the respondents in the present inquiry. However, article of charge 4 has been framed only against Mehar Singh Saini, respondent No.1, who was earlier Member and later appointed as Chairman of the Commission. These approved articles of charge can be dealt with together inasmuch as they are based on common allegations, common evidence and with reference to the same records produced by the State Government in support of the allegations. …….. The cumulative reading of these articles of charge shows that emphasis is on non-cooperation of the Chairman and Members of the Commission in not furnishing the records, when it was demanded by the investigating agencies. Further there has been an abuse of office of the Chairman and Members of the Commission by withholding the material records, passing resolutions contrary to law, filing incorrect replies in judicial proceedings and lastly the manipulation and interpolations in regard to answer sheets of the selected/non-selected candidates.

Points which emerge from these approved articles of charge :
a) Whether during their tenure as Chairman and Members of the Commission, the private respondents adopted a non- cooperative attitude and intentionally decided not to furnish relevant records to the concerned authorities/investigating agencies?
b) Whether the right of privilege in terms of Section 123 of the Indian Evidence Act, 1872 was available to the Commission acting through its Chairman and Members?
c) Whether non-furnishing of documents or records to the inquiring/investigating agencies, under the pretext that the Commission is a constitutional authority and thus not amenable to investigation, was a bona fide decision/resolution or it was an attempt to cover up the misdeeds, omissions and interpolations made in the process of selection?
Furthermore, if the records were made available to the agencies would it have exposed the misbehaviour of the private respondents?

REGARDING POINT OF LAW HIGH COURT OBSERVATIONS UP HELD:- High Court (in the same matter) had clearly held that claim of privilege for non- production of documents with reference to Sections 123 and 124 of the Evidence Act, 1972 was not sustainable or justified. The Court further held that there was sufficient material on record to justify the issuance of search warrant under Section 93(1)(a) of the Code of Criminal Procedure and held that the State had the right to get the records from the Commission for the purpose of investigation and on latter's failure, the provisions of Section 93 of the Code of Criminal Procedure were rightly invoked. It observed that the Commission is a constitutional authority and it would not be in the fitness of things that a search is conducted in its office, but such a situation has been created by it. Liberty was granted to the Commission to produce documents, records before the Investigating Officer, Inspector of Police, Vigilance (Ambala Range). Despite such unambiguous and clear directions of the Court, the Commission, acting through the private respondents failed to hand over the records but chose to prefer an SLP before this Court being SLP (Crl.) No. 3649 of 2008. This Court on 16th May, 2008, granted stay of the operation of the High Court's order. However, the matter continued to be pending for a considerable time before this Court and this SLP was ultimately withdrawn vide order dated 14th December, 2009. In the meanwhile, as already stated, four new Members had been appointed to the Commission in place of the Members whose term had expired. These newly nominated Members had taken a decision to hand over the record to the investigating agencies. Fact of the matter remains that for a very considerable time investigations were delayed and the guilty could not be brought to book. There was definite non-cooperation on the part of the private respondents.

It is not in dispute that the Government as well as the Commission had received various complaints in regard to the process of selection as well as the selections themselves, made by the Chairman and Members of the Commission to various appointments in the State services. ….. While dismissing the appeal this Court in Jitendra Kumar v. State of Haryana [(2008) 2 SCC 161] noticed the disturbing feature of non-cooperation by the Commission in the Vigilance Enquiries and held as under: "...we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an inquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned including the appellants herein to see that the inquiry should be completed at an early date."

CONCLUSION ON OTHER CHARGES:- We have no doubt in coming to the conclusion that the Chairman and Members of the Commission (private respondents herein) adopted a non-cooperative attitude and declined to furnish relevant records to the concerned authorities/investigating agencies. Furthermore, passing of resolutions and resistance despite directions/observations of the Court to comply with the notices issued by the investigating agencies to furnish records are acts which lack bona fides. The claim of privilege was sought to be invoked as a ploy to prevent production of records, which would have exposed the irregularities, illegalities and manipulations in the process of selection. In the name of the constitutional authority, the Chairman and Members of the Commission certainly violated the expected standards of behaviour. They not only adopted a non-cooperative attitude but also unduly delayed completion of the inquiry/investigations which, in fact, are stated to be pending at different stages even to this day.

ANSWERED IN AFFIRMATIVE:- Thus, there exist justifiable grounds for removal of the private respondents from their respective offices in terms of Article 317 (1) of the Constitution. In re, Dr. Ram Ashray Yadav, Chairman Bihar PSC [(2000) 4 SCC 309], this Court observed as follows: "1. Founding Fathers of the Indian Constitution relying upon the experience in other countries wherever democratic institutions exist, intended to secure an efficient civil service. This is the genesis for setting up autonomous and independent bodies like the Public Service Commission at the center and in the States. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their role and functions."

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