Author: nirbhaysharma

Delay   in   initiating   final decree proceedings under Order XX Rule 18 of the Code of Civil Procedure, 1908

#CivilProcedureCode #O-22,R-18 #PreliminaryDecree #Execution #FinalDecree #Judiciary #CivilService #LawOptional #AllIndiaBarExamination2022

KATTUKANDI EDATHIL KRISHNAN & ANR. …APPELLANT(S)

VS

ATTUKANDI  EDATHIL  VALSAN & ORS.        …RESPONDENT(S)

CIVIL APPEAL NO. NO(S). 6406­6407 OF 2010 Dated- 13-06-2022

Bench-  J. S. ABDUL NAZEER and J. VIKRAM NATH

Issue- Delay   in   initiating   final  decree  proceedings  under  Order XX Rule 18 of the  Code 

of Civil Procedure, 1908

Delay   in   initiating   final  decree  proceedings  under  Order XX Rule 18 of the 

Code of Civil Procedure, 1908

The Supreme Court deemed it necessary to address a concerning trend of delay

in drawing up the final decrees under Rule 18 of Order XX of the Code of Civil 

Procedure, 1908 (for short, ‘CPC’). This provision deals with decrees in suits for

partition or separate possession of share therein. It provides as under:

“18. Decree in suit for partition of property or separate possession of a share therein.­ Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,­

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot   be conveniently  made  without   further   inquiry, pass a preliminary decree declaring the right of the several parties, interested in the property and giving such further directions as may be required.”

Sub section (2) of Section 2 defines the decree as under:

“(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation— A decree is preliminary when further proceedings have to be taken before the suit can   be  completely  disposed  of.   It   is  final   when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;”

It is clear from the above that a preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. Thus, fundamentally, the distinction between preliminary and final decree is that:­ a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up.

Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings.  Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose.  By mere passing of a preliminary decree the suit is not disposed of.

Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings.  In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18.  However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceeding and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree.  This Court, in Shub Karan Bubna v. Sita Saran Bubna 9 (2009) 9 SCC 689, had pointed out the defects in the procedure in this regard and suggested for appropriate amendment to the CPC.  The discussion is in paragraphs 23 to 29 which are as under:

“A suggestion for debate and legislative action

23. The century old civil procedure contemplates judgments, decrees, preliminary   decrees   and   final   decrees and execution of decrees. They provide for a “pause” between a decree and execution. A “pause” has also developed by practice between a preliminary decree and a final decree. The “pause” is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees without the pursuance of an execution. In very few cases the defendants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases.

24. A litigant coming to court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application

and obtain a final decree and then file an execution to get the actual relief. The commonsensical query is: why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his separated share. Why is it necessary for him to remind the court and approach the court at different stages?

25. Because of the artificial division of suits into preliminary decree proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which   the   party   approaches   the   court.   Even   among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the final decree proceedings and then give it to their clerks for conducting the execution proceedings.

26.  Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.

27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to   get   the   relief   quickly.   This   requires   a   conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.

28. We hope that the Law Commission and Parliament will bestow their attention on this issue and make appropriate   recommendations/amendments   so   that   the   suit will be a continuous process from the stage of its initiation to the stage of securing actual relief.

29. The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings, that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief.”

The Supreme Court opined that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu.  After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC.  The courts should not adjourn the matter sine die, as has been done in the instant case.  There is also no need to file a separate final decree proceeding. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn.

Therefore, it directed the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary   decree   for   partition   and   separate   possession   of   the property, suo motu and without requiring initiation of any separate proceedings. It further directed the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in this judgment to the concerned Trial Courts in their respective States.

The jurisdiction of Consumer Forums vis-a-vis the specific remedies created under the RERA Act

#Jurisdiction #ConsumerForums #RERAAct #Judiciary #CivilService #LawOptional #AllIndiaBarExamination2022

EXPERION DEVELOPERS PVT. LTD. VS   SUSHMA ASHOK SHIROOR

CIVIL APPEAL NO. 6044 of 2019 Dated: APRIL 07, 2022

Bench: UDAY UMESH LALIT J., S. RAVINDRA BHATJ. And PAMIDIGHANTAM SRI NARASIMHA J.

Facts of the case

The Developer, M/s Experion Developers Private Ltd., is the promoter of apartment units, Windchants, in Sector 112, Gurgaon, Haryana. The Consumer booked an apartment measuring 3525 sq. ft. for a total consideration of Rs. 2,36,15,726/- in the Windchants and agreed for construction linked payment plan, which led to the execution of the Apartment Buyer’s Agreement dated 26.12.2012. As per Clause 10.1 of the Agreement, possession was to be given within 42 months from the date of approval of the building plan or the date of receipt of the approval of the Ministry of Environment and Forests, Government of India for the Project or date of the execution of the agreement whichever is later. Clause 13 of the Agreement provided for Delay Compensation. Under this clause, if the Developer did not offer possession within the period stipulated in the Agreement, it shall pay liquidated damages of Rs. 7.50 per square foot per month till possession is offered to the Consumer.

The Consumer approached the National Disputes Redressal Commission by filing an original complaint alleging that he has paid a total consideration of Rs. 2,06,41,379/- and possession was not granted even till the filing of the complaint. He, therefore, sought a refund of Rs. 2,06,41,379/- along with interest @ 24% p.a.

The Commission allowed the complaint. The Commission found that the agreement is one-sided, heavily loaded against the allottee and entirely in favour of the Developers. Following the decisions of Supreme Court in Pioneer Urban Land and Infrastructure Ltd. v. Govind Raghvan,5 (“Pioneer”), the Commission directed the Developer to refund the amount of Rs.2,36,15,726/- with interest @ 9% p.a. It is against these findings and the consequential directions of the Commission that the Developer and Consumer both filed an appeal.

Issues, Analysis and Order

I. Whether the terms of the Apartment Buyers Agreement amount to an ‘unfair trade practice’ and whether the Commission is justified in not giving effect to the terms of Apartment Buyer’s Agreement as laid down in the Pioneer case?

The Supreme Court referred to its earlier judgment in Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC 725  where it held as under:

“6.3 The National Commission in the impugned order dated 23-10-2018 held that the clauses relied upon by the builder were wholly one-sided, unfair and unreasonable, and could not be relied upon………

“6.8 A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder.”

Having examined various decisions, the Supreme Court held that the Commission is correct in its approach in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest.

II. Whether the Commission has the power under the Consumer Protection Act, 1986 to direct refund of the amount deposited by the Consumer with interest?

This question is no more res integra. In Imperia Structures Ltd v. Anil Patni11, the Supreme Court speaking through Justice Uday Umesh Lalit, examined the jurisdiction of Consumer Forums vis-a-vis the specific remedies created under the RERA Act. This judgment comprehensively deals with all aspects of parallel remedies available to the consumers under the Consumer Protection Act, 1986, and the RERA Act, 2016. It says-

“23. It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.

25. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made “without prejudice to any other remedy available to him”. The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is up to the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his investment.

26. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.

30. On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.”

A three Judges bench of Supreme Court in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241  concurred with Imperia Structures Ltd v. Anil Patni & Anr. (2020) 10 SCC 783  judgment and held-

“42. In a recent judgment delivered by this Court in Imperia Structures Ltd. v. Anil Patni, it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the r to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are “without prejudice to any other remedy available”. We place reliance on this judgment..…”

It is crystal clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other. In fact, the Supreme Court has held that they are concurrent remedies operating independently and without primacy. When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the interpretative criterion.

A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands.

The Court has held that the Commission has the power and jurisdiction to direct return of money under Section 14 of the Consumer Protection Act, if a consumer so chooses. The freedom to choose the necessary relief is of the Consumer and it is the duty of the Courts to honour it.

III. Whether the relief granted by the Commission require any modification to serve ends of justice?

The interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. v. DS Dhanda and Ors. (2020) 16 SCC 318 (at para 21)   and in modification of the direction issued by the Commission, the Supreme Court directed that the interest on the refund shall be payable from the dates of deposit.

Compassionate Appointment and Rights of Legitimate Children

#HinduMarriageAct #LegitimateChild #CompassionateAppointment #Railway #Rights #Judiciary #CivilService #LawOptional #AllIndiaBarExamination2022

MUKESH KUMAR & ANR …. APPELLANT(S) VERSUS THE UNION OF INDIA & ORS. …RESPONDENT(S)

CIVIL APPEAL NO. OF /2022 ARISING OUT OF SLP(C) NO. 18571/2018

Bench- J. UDAY UMESH LALIT, J. S. RAVINDRA BHAT, J. PAMIDIGHANTAM SRI NARASIMHA

Issue- Whether the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is legally sustainable.

Facts of the case:

Jagdish Harijan was an employee of the Indian Railways appointed on 16.11.1977. In his lifetime, Shri Jagdish Harijan had two wives, appellant No.2, Gayatri Devi, was his first wife and Konika Devi, since deceased, was his second wife. The appellant No.1 Mukesh Kumar is his son through his second wife. Shri Jagdish Harijan died in service on 24.02.2014. Shortly after that, the appellant No.2 made a representation dated 17.05.2014 seeking the appointment of her step-son/appellant No.1 under the scheme for appointments on compassionate grounds. The Respondent-Union rejected the representation on 24.06.2014 because appellant No.1, being the second wife’s son, is not entitled to such an appointment. The departmental appeal came to be dismissed on 30.12.2015. The appellants filed an original application before the Central Administrative Tribunal, Patna, which was dismissed on 19.07.2017. A writ petition was filed before the High Court of Patna questioning the correctness of the decision of the Tribunal. The Patna High Court dismissed the writ petition.

Analysis:

It is true that the matter is no more res integra. The Supreme Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646 considered the very same policy and circular that arise for the consideration in the present case. The judgment covers the issue, as is evident from the following passages:

“14. The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc.) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution….

16. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.

17. Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor  General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination.

18. … The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children.”

The scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee.

Apart from the discrimination ensuing from treating equals unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P. and Ors., (2008) 13 SCC 730, the Supreme Court:

“18. The principles relating to compassionate appointments may be summarised thus;

(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.

(b) Two well-recognised contingencies which are carved out as exceptions to the general rule are:

(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.

(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.

Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations. It lends justification only that far and no further.

While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. In this regard, ‘descent’ must be understood to encompass the familial origins of a person.5 Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant’s legitimacy as their child. The policy cannot discriminate against a person only on the ground appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).

(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.

(d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts.”

Decision– This case, is covered by the judgment of the Supreme Court in Union of India and Ors. v. V.K. Tripathi and consequently the judgment and order dated 18.01.2018 of the High Court of Judicature at Patna passed in CWJC No. 18153 of 2017 is set aside.

Res Judicata

#CPC #OrderII,R-2 #OrderVII,R-11 #Injunction #Title #Possession #Ownership #Judiciary #CivilService #LawOptional #AllIndiaBarExamination2022

SRI LANKAPPA & ORS. vs KARNATAKA INDUSTRIAL CORPORATION & ORS.

C.A. 7545/2021: 08-DEC-2021

Bench:  UDAY UMESH LALIT J and S. RAVINDRA BHAT J

Issue- Whether the judgment in a suit for injunction bars by res judicata a subsequent suit for declaration of title?

Observation:

The observation of the Supreme Court – It is apparent from the facts that the two suits filed earlier – the 1995 Suit and KIC Suit-I – culminated in a decision favourable to the appellants herein, as KIC’s suit was dismissed. KIC and the other respondents appealed against the decision in the present appellant’s suit; that appeal was also dismissed. The second appeal preferred by the parties was dismissed on 16.06.2005. The High Court pertinently observed and held that the appellants herein were in possession of the Suit Schedule Property and rightly injuncted the respondents from interfering with their peaceful possession and enjoyment of the same, holding further that there was deemed cancellation of the grant of land granted in favour of the respondents herein as due procedure had not been followed. These findings were challenged in a suit filed by the appellants, which claimed that they had absolute title to the property. No doubt, KIC’s suit claimed injunction; its dismissal, if that were the only proceeding, would not have precluded a subsequent suit, claiming title. However, the fact here is that KIC was a respondent in the suit filed by the appellant (i.e., the 1995 Suit) which expressly sought the relief of declaration that the appellant was the absolute owner. It was in such a context that the question of ‘ownership’, which was directly in issue, in a proceeding, i.e., a suit, filed before a competent court, was decided. That decision ruled out KIC’s ownership, holding that there was “deemed cancellation of the grant of land” before the High Court. All these facts were disclosed by KIC in the suit filed after this Court dismissed its civil appeal, thus rendering the judgment in the second appeal final. In these circumstances, the issue which remains is whether the trial court wrongly rejected KIC Suit-II, as found by the impugned judgment.

In Anathula Sudhakar vs P. Buchi Reddy (2008) 4 SCC 594, this Court outlined various situations in which a person claiming possession or injunction can claim relief. They are set out below:

“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

• Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
• As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The 9 prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
• But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
• Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

In the present case, KIC no doubt sought only a permanent injunction in its first suit. However, it is a fact of equal importance that the appellants-herein consistently agitated KIC’s title. KIC was a party to those proceedings. All the courts concurrently held that the grant, on which KIC based its possession, was deemed to be cancelled. Therefore, KIC could, by no procedure known to law, claim in another suit, that it was the absolute owner by virtue of the self-same grant, which was deemed to have been cancelled. The trial court therefore cannot be faulted with for holding that the question of title was directly in issue in the previous proceedings, and merely because it resulted in findings adverse to KIC, it could not escape being bound by those findings.

Intelligible Differentia

• 

#Art14 #Service #DelhiHighCourt #Recruitment #Constitution #Judiciary #CivilService #LawOptional #AIBE

VIKASH KUMAR vs DIRECTOR GENERAL, INDO-TIBETAN BOARDER POLICE FORCE & ORS.

W.P.(C) 12184/2021: 26-NOV-2021

Bench:  Manmohan J and Navin Chawla J

Issue- Whether having participated in the advertisement without demur the petitioner can challenge the said disqualification at this stage?

Observation:

The petitioner applied for the post of Constable (Driver) under OBC category and successfully qualified PET/PST, written test and documentation and practical (skill) test.

Subsequently the petitioner was called on 14th September 2021 at the Referral Hospital, ITBP, Surajpur, Greater Noida for a detailed medical examination wherein he was declared unfit on the ground of a tattoo embossed on his right arm.

The petitioner contends that the tattoo mark on the petitioner’s right arm is his own name and it does not cause any prejudice to anyone and the same is within the permissible limits as provided under the rules. He also states that none of the government guidelines prohibit tattoo as a medical disqualification. He also states that the conditions/requirements laid down by the respondents are also not in accordance with the norms followed by the Indian Army.

The Court held that the petitioner admittedly has a tattoo on his right arm, which is the saluting arm. Consequently, the petitioner is not eligible as per Clause 4.4(iv)(b) of the Advertisement.

The Court further said that the petitioner’s reliance on the Indian Army policy is misconceived as the petitioner is seeking recruitment in ITBP and the advertisement on the basis of which he had applied contained the disqualification in Clause 4.4(iv). Having participated in the advertisement without demur the petitioner cannot challenge the said disqualification at this stage.

In any event, the stipulation of disqualification of tattoo on the right arm is a classification that is based on an intelligible differentia and the intelligible differentia has a rationale relation to the object sought to be achieved, namely, that the tattoo is visible while saluting. Consequently, the petitioner’s candidature has been rightly rejected.

Distinction between ‘Preparation’ and ‘Attempt’ to commit rape

#IPC #Rape #SupremeCourt #HighCourt #Section375 #Section511 #Law #Constitution #Judiciary #CivilService #LawOptional #AIBE

STATE OF MADHYA PRADESH vs   MAHENDRA ALIAS GOLU

CRIMINAL APPEAL NO. 1827 OF 2011: 25-OCT-2021

Bench:  Surya Kant and Hima Kohli

Issue- Distinction between ‘Preparation’ and ‘Attempt’ to commit rape.

Observation:

The Supreme Court has explained the distinction between ‘Preparation’ and ‘Attempt’ to commit rape in following manners.

It is a settled preposition of Criminal Jurisprudence that in every crime, there is first, Mens Rea (intention   to   commit), secondly, preparation   to   commit   it, and   thirdly, attempt to commit it. If the third stage, that is, ‘attempt’ is successful, then the crime   is complete.   If   the   attempt   fails, the   crime   is   not complete, but law still punishes the person for attempting the said act.   ‘Attempt’   is   punishable   because   even   an unsuccessful commission  of offence is preceded by mens rea, moral guilt, and  its depraving impact on the societal  values  is  no  less  than  the  actual commission. 

There   is   a   visible distinction   between ‘preparation’   and ‘attempt’ to commit an  offence  and  it  all  depends  on  the statutory

edict coupled with the nature of evidence produced in a case. The stage of ‘preparation’ consists of deliberation, devising or arranging the means or measures, which would be necessary for the commission of       the offence. Whereas an ‘attempt’ to commit the offence, starts immediately after the completion of preparation. ‘Attempt’ is the execution of mens rea after preparation. ‘Attempt’ starts where `preparation’ comes to an end, though it falls short of actual commission of the crime.

However, if the attributes are unambiguously beyond the stage of preparation, then the misdemeanours shall qualify to be  termed as an ‘attempt’ to commit the principal offence and such  ‘attempt’ in itself   is   a   punishable   offence   in   view   of   Section   511   IPC.    The ‘preparation’   or ‘attempt’   to   commit   the   offence   will   be predominantly  determined on evaluation of the act and conduct of an  accused; and as to whether or not the incident tantamounts to transgressing the thin space between `preparation’ and   ‘attempt’. If

 no overt act is attributed to the accused to commit the offence and only   elementary   exercise   was   undertaken   and   if   such preparatory  acts  cause  a  strong  inference  of  the  likelihood  of commission  of  the  actual  offence,  the  accused  will  be  guilty  of preparation   to   commit   the   crime,   which   may   or   may   not   be punishable, depending upon the intent and import of the penal laws. 

Section  511  IPC  is  a general provision dealing with attempts to commit  offences  which  are  not  made punishable by other specific sections  of  the  Code  and  it  provides, inter alia, that, “whoever attempts   to   commit   an   offence   punishable   by   this   Code  with imprisonment   for   life   or   imprisonment,   or   to   cause   such   an offence   to   be   committed,   and   in   such   attempt   does   any   act towards  the  commission  of  the  offence,  shall, where no express provision   is   made   by   this   Code   for   the   punishment   of   such attempt,   be   punished   with   imprisonment   of   any   description provided  for  the  offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or  with such   fine as is provided for the offence, or with both”. 

The Supreme Court further explained that what constitutes an `attempt’ is  a mixed question of law and facts. ‘Attempt’ is the Direct

movement towards   the   commission   after   the preparations   are   over.     It   is   essential   to   prove   that   the attempt   was   with   an   intent   to   commit   the   offence.     An attempt  is  possible  even  when  the  accused  is  unsuccessful in committing the principal offence. Similarly, if the attempt to commit a crime is accomplished, then the crime stands committed for all intents and purposes.

The  act   of   the   respondent   of luring the minor   girls, taking them

inside the room, closing the doors and taking  the  victims  to a  room

with  the  motive  of  carnal knowledge, was  the end of ‘preparation’ 

to commit the offence. His following  action  of  stripping  the prosecutrices  and  himself,  and rubbing his genitals against those of

the victims was indeed an endeavour  to  commit  sexual intercourse.

These  acts  of  the respondent   were   deliberately   done  with manifest   intention   to commit  the  offence  aimed  and were reasonably  proximate  to  the consummation  of  the  offence.   Since

the  acts  of  the  respondent exceeded  the  stage  beyond preparation  and  preceded  the  actual penetration,   the  Trial Court  rightly  held him guilty of attempting to  commit  rape as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence.

CONCLUSION:   The findings   given   contrarily by the High Court In ignorance  of the  material  evidence  on  record,  are  perverse and untenable in the eyes of law. Thus, the appeal was allowed and set aside the judgment of the High Court and restored that of the Trial Court.

Retrial and Joint Trial in Criminal Proceeding

#CrPC #ReTrial #SupremeCourt #HighCourt #Section386 #JointTrial #Law #Constitution #Judiciary #CivilService #LawOptional

Nasib Singh  vs   The State of Punjab & Anr

CRIMINAL APPEAL NO. 1051- 1054 OF 2021: 08-OCT-2021

Bench:  Dr Dhananjaya Y Chandrachud, Vikram Nath and BV Nagarathna

Issue- Circumstances under which retrial and joint trial may be ordered by the Appellate Court

Observation:

RETRIAL

The Supreme Court discussed Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926 a Constitution Bench judgment and found that it emphasizes that a retrial would not be ordered unless the Appellate Court is satisfied that:

1. The court trying the proceeding had no jurisdiction;
2. The trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings as a result of which no real trial was conducted; or
3. The prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice, the Appellate Court considers it appropriate to order a retrial.

Another feature which emerges from the above decision is that an order of retrial wipes out from the record the earlier proceeding and exposes the present accused to another trial. It is for that reason that the court has affirmed the principle that a retrial cannot be ordered merely on the ground that the prosecution did not produce proper evidence and did not know how prove their case.

The Supreme Court further looked into Mohd Hussain v. State (Government of NCT of Delhi (2012) 9 SCC 408, Nar Singh v. State of Haryana  (2015) 1 SCC 496, Ajay Kumar Ghoshal v. State of Bihar 2017) 12 SCC 699 judgments and summarised the principles on retrial and formulated as under:

1. The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
3. A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
4. It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
5. If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and
6. The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :

a) The trial court has proceeded with the trial in the absence of jurisdiction;

b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and

c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.

JOINT TRIAL AND SEPARATE TRIAL

The Supreme Court discussed State of Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 Chandra Bhal v. The State of UP 1971 (3) SCC 983 Essar Teleholdings Limited v. Central Bureau of Investigation (2015 ) 10 SCC 562.

From these decisions the Supreme Court formulated principles on joint trial and separate trials as under:

1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
2. While applying the principles enunciated in Sections 218 – 223 on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (a) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (b) whether conducting a joint/separate trial would cause judicial delay.
3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
4. Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.

High Court can exercise its writ jurisdiction under Article 226 of the Constitution even if an effective and efficacious alternate remedy is  available.

#WritJurisdiction #SupremeCourt #HighCourt #Article226 #AlternateRemedy #Law #Facts #Constitution #Judiciary #CivilService #LawOptional

M/s Magadh Sugar & Energy Ltd.  vs   The State of Bihar & Ors.

CIVIL APPEAL NO. 5728 OF 2021: 24-Sep-2021

Bench:  [Dr Dhananjaya Y Chandrachud], Vikram Nath and BV Nagarathna

Issue- Whether High Court can exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is  available?

Observation: The Patna High Court declined to entertain the writ petition instituted by the appellant on the ground that the dispute between the parties is factual in nature and is suitable for adjudication in terms of the statutory remedy provided in the Bihar Electricity Duty Act 1948. The appellant had invoked the writ jurisdiction of the High Court to challenge the imposition of electricity duty and penalty on the electricity that it was supplying to Bihar State Electricity Board. Thus, the matter came before the Supreme Court.

While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies.

Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors 2021 SCC On Line SC 334 a two judge Bench of Supreme Court has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court observed:

• The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
• The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
• Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
• An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
• When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
• In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” (emphasis supplied)

It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law

A three judge Bench of Supreme court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that:

 “9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine, Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact.

10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law.”

The test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario. In this case, the High Court was entrusted with the determination of the meaning of the phrases used in Section 3 of the Act to determine if the supply of electricity by the appellant would fall within its ambit. Unlike a dispute on the execution of a promissory note or a plea of adverse possession, there is no adjudication on facts required here. There is also no dispute on the nature of the transaction involved.

The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B (1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court.

Finally, the Supreme Court observed that the High Court made an error in declining to entertain the writ petition and restored the proceedings back to the High Court for a fresh disposal.

#WritJurisdiction #SupremeCourt #HighCourt #Article226 #AlternateRemedy #Law #Facts #Constitution #Judiciary #CivilService #LawOptional

M/s Magadh Sugar & Energy Ltd.  vs   The State of Bihar & Ors.

CIVIL APPEAL NO. 5728 OF 2021: 24-Sep-2021

Bench:  Justices Dr Dhananjaya Y Chandrachud , Vikram Nath and BV Nagarathna

Issue- Whether High Court can exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is  available?

Observation: The Patna High Court declined to entertain the writ petition instituted by the appellant on the ground that the dispute between the parties is factual in nature and is suitable for adjudication in terms of the statutory remedy provided in the Bihar Electricity Duty Act 1948. The appellant had invoked the writ jurisdiction of the High Court to challenge the imposition of electricity duty and penalty on the electricity that it was supplying to Bihar State Electricity Board. Thus, the matter came before the Supreme Court.

While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies.

Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors 2021 SCC On Line SC 334 a two judge Bench of Supreme Court has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court observed:

• The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
• The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
• Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
• An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
• When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
• In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” (emphasis supplied)

It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law

A three judge Bench of Supreme court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that:

 “9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine, Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact.

10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law.”

The test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario. In this case, the High Court was entrusted with the determination of the meaning of the phrases used in Section 3 of the Act to determine if the supply of electricity by the appellant would fall within its ambit. Unlike a dispute on the execution of a promissory note or a plea of adverse possession, there is no adjudication on facts required here. There is also no dispute on the nature of the transaction involved.

The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B (1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court.

Finally, the Supreme Court observed that the High Court made an error in declining to entertain the writ petition and restored the proceedings back to the High Court for a fresh disposal.