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01/08/2024

Sub-Classification Permissible Within Scheduled Castes To Give Separate Quotas For More Backwards : Supreme Court

A 7-judge bench of the Supreme Court(by 6-1) held that sub-classification of Scheduled Castes is permissible to grant separate quotas for more backwards within the SC categories.

The Court clarified that while allowing sub-classification, the State cannot earmark 100% reservation for a sub-class. Also, the State has to justify the sub-classification on the basis of empirical data regarding the inadequacy of representation of the sub-class.

Chief Justice of India DY Chandrachud stated that there are 6 judgments, all concurring. The majority has overruled the EV Chinniah judgment of 2004 which held that sub-classification is not permissible. Justice Bela Trivedi dissented.

The 7-judge Constitution Bench was considering essentially two aspects:

(1) whether sub-classification with the reserved castes be allowed, and

(2) the correctness of the decision in E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, which held that 'Scheduled Castes' (SCs) notified under Article 341 formed one homogenous group and could not be sub-categorized further.

The Bench comprising Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma reserved the judgment on February 8 this year after hearing the matter for three days.

Sub-classification does not violate Articles 14, 341 : CJI's opinion

CJI DY Chandrachud, in the judgment written for himself and Justice Misra, referred to historical evidence which suggested that scheduled castes are not a homogeneous class. Sub-classification does not violate the principle of equality enshrined under Article 14 of the Constitution. Also, sub-classification does not violate Article 341(2) of the Constitution. There is nothing in Articles 15 and 16 which prevents the State from sub-classifying a Caste.

The basis of subclassification has to be justified by quantifiable and demonstrable data by States that they are not adequately represented. State cannot act on its whims or political expediency and its decision is amenable to judicial review.

State can give more preferential treatment to more backward classes

Justice BR Gavai, in his concurring judgment, stated that it is the duty of the state to give preferential treatment to the more backward communities. Only a few people within the category of SC/ST are enjoying the reservations. The ground realities cannot be denied and there are categories within the SC/STs which have faced more oppression for centuries.

The basic error in EV Chinnaiah judgment is that it proceeded on the understanding that Article 341 is the basis of reservation. Article 341 only deals with the identification of castes for the purpose of reservation.

The grounds for sub-classification is that a group from the larger group faces more discrimination.

Creamy layer must be made applicable to SC/STs : Justice Gavai

Justice Gavai opined that the State must evolve a policy to identify creamy layers among the SC/ ST category and take them out of the fold of affirmative action. This is the only way to gain true equality, he said.

Justice Vikram Nath also concurred with this view that the creamy layer principle as applicable to OBCs also applies to SCs. Similar view was expressed by Justice Pankaj Mithal, who said that reservation should be limited to one generation. If the 1st generation reached a higher status through the reservation, the 2nd generation should not be entitled to it, Justice Mithal said.

Justice Satish Chandra Sharma also supported this view.

Justice Trivedi's dissent

In her dissent, Justice Trivedi stated that the Presidential list of Scheduled Castes notified under Article 341 cannot be altered by the States. Castes can be included or excluded from the Presidential list only by a law enacted by the Parliament. Sub-classification will amount to tinkering of the Presidential list. The object of Article 341 was to eliminate any political factors playing a role in the SC-ST list

Justice Trivedi stated that the rule of plain and literal interpretation has to be kept in mind.

Any preferential treatment for a sub-class within the Presidential list will lead to deprivation of the benefits of the other classes within the same category.

In the absence of executive or legislative power, the States do not have any competence to sub-classify the castes and sub-classify the benefits which are reserved for all of the SCs. Allowing States to do so will amount to allowing a colourable exercise of power.

What Led To The Reference Of The Issue?
The matter was referred to a 7-judge bench by a 5-judge bench in 2020 in the case State of Punjab v. Davinder Singh. The 5-judge bench observed that the judgment of the coordinate bench in E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, which held that sub-classification was not permissible, was required to be reconsidered. The referring bench reason that 'EV Chinniah' did not correctly apply the decision of Indira Sawhney v. UOI

The reference took place in a case concerning the validity of Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The provision stipulated that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing first preference from amongst the Scheduled Castes candidates.

In 2010, a division bench of the Punjab and Haryana High Court struck down the provision, relying on EV Chinnaiah judgment.

In EV Chinnaiah, the bench of Justices N.Santosh Hegde, S.N.Variava, B.P.Singh, H.K.Sema, S.B.Sinha held that all the castes in the Presidential Order under Article 341(1) of the Constitution formed one class of homogeneous group and the same could not be further subdivided. Under Article 341(1), the President of India can officially designate certain groups as Scheduled Castes in any State or Union territory. The said designation of SCs for states has to be done in consultation with the Governor and then be publicly notified. The designation can be done amongst the categories of castes, races, tribes, or their sub-groups.

It was further held therein that any such legislation concerning Entry 41 of List II (State Public Services; State Public Service Commission) or Entry 25 of List III ( Education) of the Seventh Schedule to the Constitution would be violative of Article 14 of the Constitution.

04/07/2024

Case Title: Mr.P.N.Vignesh v The Chairman and Members of the Bar Council, BCI Case No: W.P.No.31281 of 2019

“Legal Service Is Not Business”: Madras HC Asks State Bar Councils To Take Action Against Lawyers Soliciting Work Through Online Service Providers

The Madras High Court has come down heavily on lawyers soliciting work through online websites in violation of Bar Council of India Rules. The court has asked the Bar Council of India to issue circulars/instructions/guidelines to State Bar Councils to initiate disciplinary proceedings against lawyers for advertising or soliciting their services directly or indirectly. The court added that action should be taken against any form of advertising including furnishing newspaper comments, or producing photographs to be published in connection with cases, etc.

The bench of Justice SM Subramaniam and Justice C Kumarappan noted that the legal profession, unlike others, was not a job or a business and the intention was to provide welfare to the society. The court added that though a fee was paid to the lawyers, it was paid out of respect for their time and knowledge. The court added that providing ranking or customer ratings to lawyers demeaned the profession and was against dignity and integrity.

“It is agonising that some of the legal professionals today are trying to adopt a business model. Legal service is neither a job nor a business. A business is driven purely by profit motive. But in law, larger part is a service to the society. Though a service fee is paid to a lawyer, it is paid out of respect for their time and knowledge,” the court said".

The court thus directed the Bar Council of India to register complaints before competent authorities against online service providers/intermediaries conspiring or aiding the commission of unlawful acts of publication of advertisements by lawyers. The court also asked the Bar Council to remove the advertisements published by lawyers through online service providers and to issue advice to the intermediaries to not publish such advertisements in the future.The court was hearing a plea against websites like quikr.in, sulekha.com and justdial.com providing online lawyer services on their websites. The petitioner pointed out that online lawyer services were prohibited under the Bar Council of India Rules and amounted to misconduct under Section 35 of the Advocates Act. He also called the Bar Council of India and the Bar Council of Tamil Nadu and Puducherry to take strict action to curb such online soliciting.end up publishing false and unverified information on their website. The court added that the public was prone to be misguided and without any authority to cross-check such online information, the public ended up losing faith in the judicial process. Thirdly, the court pointed out that the intention was to narrow down the chasm of inequality. The court added that the attempt was to establish a level playing field due to the economic factors and the attempt was to make sure that all are equal be.

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12/05/2024

Recently, High Court of Chhatisgarh held that If a mortgaged property is sold by the Bank for loan repayment is later found to be disputed, the authority sanctioning the loan cannot be held liable :

The Division Bench Of Chhattisgarh High Court comprising Chief Justice Ramesh Sinha and Justice Smt. Rajani Dubey was hearing a petition and observed that If a mortgaged property is sold by the Bank for loan repayment is later found to be disputed, the authority sanctioning the loan cannot be held liable, as they are protected under Section 32 of the SARFAESI Act.

In the case heard by the High Court, Mr. Sharad Mishra, representing the petitioner, sought to quash FIR No.507/2018 against the petitioner under Section 482 of Cr.P.C. The petitioner, a Deputy General Manager at Punjab National Bank, was accused of offences under Sections 420, 467, 468, 471 & 120 (B) of IPC for actions related to a loan facility.

The petitioner had sanctioned a loan to M/s Sharma Vin Trade Services Pvt. Ltd., secured against mortgaged property. The borrower defaulted, leading to legal actions by the bank. Subsequently, respondent No.2/complainant, involved in a dispute with the borrower, filed an FIR against the petitioner and others, alleging irregularities.

The petitioner argued that the allegations were civil in nature and that the FIR was an attempt to halt legitimate recovery proceedings. Respondent No.2 countered with claims of forgery and conspiracy involving bank officials, including the petitioner.

After hearing arguments, the High Court deliberated on principles laid down by the Supreme Court regarding quashing of FIRs. It observed that the dispute primarily concerned the borrower and respondent No.2, with the petitioner being a bank official carrying out duties in good faith. The Court noted that the petitioner had not been prosecuted by the bank, indicating a lack of criminal intent on his part.

Ultimately, the Court quashed the FIR against the petitioner, citing protection under Section 32 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, and the absence of grounds for criminal prosecution. The proceedings against other accused parties would continue.

12/05/2024

S. 498-A IPC cannot be applied mechanically’; SC asks Centre to make necessary changes upon considering pragmatic realities :

The Supreme Court has on May 3, 2024 , in matter of Aachin Gupta Vs. State of Haryana , expressed concern over misuse of Section 498A of the Indian Penal Code for wreaking vengeance on husband and family members and has asked the Union government to take into consideration the pragmatic realities and consider making necessary changes in Sections 85 and 86 respectively of the Bharatiya Nyaya Sanhita, 2023, before both the new provisions come into force.

The apex court said every matrimonial conduct, which may cause annoyance to the other side may not amount to cruelty and mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.

A bench of Justices JB Pardiwala and Manoj Misra referred to a previous judgment in case of 'Preeti Gupta Vs State of Jharkhand", (2010) where the Supreme Court had asked the legislature to look into provision after having noted exaggerated versions of the incident in a large number of complaints in cruelty complaints, leading to enormous social unrest affecting peace, harmony and happiness of the society.

"We looked into Sections 85 and 86 respectively of the Bharatiya Nyaya Sanhita, 2023, which is to come into force with effect from 1st July, 2024 so as to ascertain whether the Legislature has seriously looked into the suggestions of this Court...(there is) nothing but verbatim reproduction of Section 498A of the IPC. The only difference is that the Explanation to Section 498A of the IPC, is now by way of a separate provision, i.e., Section 86 of the Bhartiya Nyaya Sanhita, 2023," the bench noted.

Accordingly, Registry has been directed to send one copy each of this judgment to the Union Law Secretary and Union Home Secretary, to the Government of India who may place it before the Minister for Law and Justice as well as the Minister for Home for necessary action.

21/02/2024

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03/02/2024

Munishamappa v. M. Rama Reddy and Ors
By - Jayanth Ravi on December 1, 2023.

Recently, the Hon’ble Supreme Court in Munishamappa v. M. Rama Reddy and Ors. held that an agreement to sell does not confer any ownership or confer any title. Further, the Hon’ble Court explained a key concept under Section 54 of the Transfer of Property Act 1882. The section states that a contract to sell property only shows the intention to sell based on already agreed terms, and it does not naturally create any interest or charge on the property.

In 1990, Munishamappa (“Appellant”) and Rama Reddy (“Respondent”) entered into an agreement to sell. Before the ex*****on of the agreement to sell, the entire sale consideration was paid, and the possession property in question was also handed over to the appellant. However, the agreement to sell was never registered, as the aim was to execute a registered sale deed in the future as specified in the terms of the agreement to sell.

In this case, the ex*****on of the registration of the sale deed did not occur because of the Prevention of Fragmentation and Consolidation of Holdings Act, 1966 (Section 5(2)). The agreement to sell was made with the anticipation that the Fragmentation Act would soon be repealed, which eventually happened; however, even after the repeal, the agreement to sell did not lead to a registered sale deed.

On September 3, 2001, the appellant sent a legal notice to the respondent seeking ex*****on of a sale deed, but the respondent refused to register the sale deed. Thereafter, on October 1, 2001, the appellant instituted a suit seeking specific performance of the agreement to sell; however, the trial court dismissed the suit on the grounds of limitation.

The first appellate court overturned the decision on appeal, and it was held that the suit was within the limitation period. The respondent brought the first appellate court decision before the Hon’ble High Court of Karnataka. The Court allowed the appeal based on the fact that the agreement to sell violated the Fragmentation Act, rendering it void. The present appeal before the Hon’ble Supreme Court challenges the judgement of the Hon’ble High Court.

The Supreme Court framed the issues as:

Whether the decision of the first appellate court, exercising jurisdiction and discretion in terms of the relevant considerations, including Section 20 of the specific relief act, deserves interference by the High Court in the second appeal and proceeding to decide on an issue that does not really arise?
Whether the High Court was right in holding that suit was hit by the Fragmentation Act in the absence of pleading?
The Hon’ble Supreme Court held that the High Court cannot go beyond their scope and proceed to decide on an issue that does not really arise from the pleading. Further, the jurisdiction exercised by the first appellate court, having regard to the essential aspects such as readiness and willingness, equity, etc., for the grant of specific performance, is not to be interfered with in the absence of valid grounds that prevent the ex*****on of a registered sale deed. The scope of Section 5 of the Fragmentation Act, which prohibits the transfer of land at the time of ex*****on of the agreement, also cannot stand since the provision itself has become obsolete and such a claim was never pleaded.

05/02/2023

"शादी" कैसे भी करो लेकिन न्यायालय द्वारा न्यायिक प्रक्रिया से किया गया "तलाक" ही वैध होगा

26/01/2023

If R**e Victim Is Found Pregnant And Wants Termination Of Pregnancy, Produce Her Before Medical Board On Same Day: Delhi High Court To Police

The Delhi High Court h

16/06/2022

Section 154 And 156(3) of Code of Criminal Procedure-What, When And How....

Section 154 And 156 of CrPC

Hon’ble Apex Court, in the matter of “M. Subramaniam & Anr. Vs. S. Janaki & Anr, has recently set aside a High Court order which directed the police to register an FIR and file the final report on the basis of the complaint. Hon’ble Supreme Court placed reliance on its previous decision in the matter of Sakiri Vasu v. State Of Uttar Pradesh And Others , in which it has dealt with due process in connection with the non-registration of FIR.

Beginning with the essential differences between the sections 154 and 156(3) of Code of Criminal Procedure, 1973, this article culminates with the chronology of remedies to be exhausted for registration of FIR through Court.

Section 154: Information in cognizable cases

Section 154 (1) Cr.P.C elucidates that any information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station, shall be reduced to writing by himself or under his direction, and all such information, whether in writing or reduced to writing as aforesaid, shall be signed by the person who furnishes it.

Section 154 (3) Cr.P.C explicates that a complaint shall be given in writing or by post to the Superintendent of Police if any person is aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection.

The Superintendent of Police, upon receipt of such complaint if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code.

Section 156 (3). Judicial magistrate’s power to investigate cognizable case[4]

Section 156(3) entails that any Magistrate empowered under Section 190 may order an investigation by a police officer performing its duties under Chapter XII of Cr.P.C

The above-mentioned sections highlight the chronology/series of remedies available to a person. Firstly, filing a complaint before the police official and secondly, in the event of failure of the registration of the complaint by the official, one shall approach the SSP/SP for the said purpose. However, if the complaint is not registered even after that, then the next remedy is to seek help from the Judicial Magistrate.

Hon’ble Apex Court citing various judgments has clarified the right approach for registration of FIR.

Court’s Observation

Hon’ble Apex court has observed that if any application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and an appropriate investigation to be taken place, in the event where, according to the aggrieved person, no proper investigation was done. Under the same provision, the Magistrate may monitor the investigation to ensure a proper investigation.

Supporting Case Laws

In Mohd. Yousuf v. Afaq Jahan Hon’ble, Apex Court observed: (SCC p. 631, para 11)[5] that a Judicial Magistrate, before taking cognizance of the offence, may order investigation under Section 156(3) of the Code. If he does so, he should not consider the complainant’s oath because he was not taking cognizance of any offence therein.
This Court had taken the same view in Dilawar Singh v. State of Delhi (JT vide para 17).[6]
The honb’le Court clarified that even if an FIR has been registered and the police have made the investigation, or is making the investigation, which the aggrieved person feels is not satisfactory, such a person can approach the Magistrate under Section 156(3) Cr.P.C, and if the Magistrate is satisfied he can order a proper investigation and may take other appropriate actions.

Thus, in cases where the Magistrate finds that the police has not done its job or is not satisfied with the investigation of the case, he can direct the police to supervise the investigation and monitor it.

In State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19)[7], Hon’ble Court held that a Magistrate can order an investigation to resume even after the police have submitted the final report.
Thus, Section 156(3) Cr.P.C although briefly worded, is very extensive and includes all such incidental powers as are necessary to ensure a proper investigation.

In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others, it was observed that if a person has a grievance that his FIR has not been registered by the police, proper investigation is not being done, then the remedy available to the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C.
High Court’s Power – (Why not move the High Court by filing a writ petition or Under Section 482 Cr.P.C)

Hon’ble Apex Court relying on its judgment passed in Case observed that- we have found in this country that the High Courts are flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

The High Court should not encourage this practice and should generally refuse to intervene in such matters and relegate the petitioner to his alternating remedy under Section 154(3) and Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36, his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C.

The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person’s FIR has not been registered by the police, or after being registered, a proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C.

It is true that alternative remedies are not the absolute bar to a writ petition, but it is equally settled that the High Court should not intervene if there is an alternative remedy.

Conclusion

Thus, it can be safely concluded that in order to keep the wheels of our criminal justice system moving, filing of “FIR” is most essential. The same should be done chronologically. Firstly, the complainant must try to get the FIR filed under Section 154 C.r.P.C. If the police refuse to register FIR U/S 154 then the complainant must move under Section 154(3) by filing a written complaint. In case of non-registration of FIR, as per previous provisions then the complainant can move under Sec 156(3) and can approach Magistrate.

It is well-settled law that 156(3) is a resort for registration of FIR in the event the police do not entertain one’s complaint. Directly approaching High Court for registration of the FIR either by filing a writ petition/application under Article 226 of Constitution Of India or section 482 of CrPC would cause dismissal of the petition out rightly. Therefore, the crux of the matter is to exhaust the remedies chronologically, categorically and cautiously in light of the aforementioned legal scheme of provision.

04/11/2021

Raj K. Singh & Associates wishes you
a Prosperous & Happy
Diwali.

We are committed to serve poor & deprived people .

Regards:

Raj K. Singh ,
Advocate
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Law Firm)

11/09/2021

The Supreme Court observed that mutation entry in the revenue record is only for fiscal purposes and does not confer any right, title or interest in favour of a person.

In Paragraph "5" in the judgement of Hon'ble Supreme Court in the Case of Jitendra Singh vs. State of Madhya Pradesh ; SLP(C) 13146/2021
Coram: Justice MR Shah and Aniruddha Bose, observed as follow:

'5..Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made",

The court referred to the judgment in Balwant Singh v. Daulat Singh (D) (1997) 7 SCC 137.

"Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.", the Court said.

The bench further noted that in Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it was held that an entry in revenue records does not confer title on a person whose name appears in record-of-rights.

"Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court.", it noted.

The court noticed that similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70. 7.

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