IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

VINEETA SHARMA … APPELLANT(S)
VERSUS
RAKESH SHARMA & ORS. … RESPONDENTS

WITH

SPECIAL LEAVE PETITION (C) NO.684 OF 2016

SPECIAL LEAVE PETITION (C) NO.35994 OF 2015

SPECIAL LEAVE PETITION (C) NO.38542 OF 2016

SPECIAL LEAVE PETITION (C) NO.6403 OF 2019

SPECIAL LEAVE PETITION (C) NO.14353 OF 2019

SPECIAL LEAVE PETITION (C) NO.24901 OF 2019

SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020

J U D G M E N T

ARUN MISHRA, J.

1. The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’) has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along.

2. In the case of Lokmani & Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016] the High Court held that section 6, as amended by the Act of 2005, is deemed to be there since 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of ‘partition’ used in the Explanation to amended Section 6(5).

3. In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], the question raised is about the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of 2005 came into force, whether daughter would become a coparcener of joint Hindu family property.

4. In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016], the question raised is where the final decree has not been passed in a suit for partition, whether the re­ distribution of shares can be claimed by the daughters by amended section 6, as substituted.

5. In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C] No.6403/2019], the question raised is whether section 6, as substituted, is prospective as the father died in the year 1994 and, thus, no benefit could be drawn by the daughters.

6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No. 14353/2019], the petitioner sought partition of his father’s ancestral properties, and suit was filed in 2001. The trial court granted 1/7th share to all the parties. The same was modified. It was held petitioner, and daughters were entitled to only 1/35th share in the light of the decision of this Court in Prakash v. Phulavati (supra).

7. In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP [C] Nos. 1766­67/2020], the daughters have been accorded equal shares in Item No. 1 of Schedule A property, that has been questioned.

8. A Division Bench of this Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. This Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of section 6 have been held to be prospective.

9. In Danamma (supra), this Court held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener’s father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece.
Arguments:

10. Shri Tushar Mehta, learned Solicitor General of India, appearing on behalf of Union of India, raised the following arguments:

(i) The daughters have been given the right of a coparcener, to bring equality with sons, and the exclusion of daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. The Amendment Act, 2005, is not retrospective but retroactive in operation since it enables the daughters to exercise their coparcenary rights on the commencement of the Amendment Act. Even though the right of a coparcener accrued to the daughter by birth, coparcenary is a birthright.

(ii) The conferment of coparcenary status on daughters would not affect any partition that may have occurred before 20.12.2004 when the Bill was tabled before Rajya Sabha as contained in the proviso to section 6(1). Hence, the conferment of right on the daughter did not disturb the rights which got crystallised by partition before 20.12.2004.

(iii) Unamended Section 6 provided that if a male coparcener had left behind on death a female relative specified in Class I of the Schedule or male relative claiming through such female relative, the daughter was entitled to limited share in the coparcenary interest of her father not share as a coparcener in her rights. They were unable to inherit the ancestral property like sons/male counterparts. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution of India.

(iv) With effect from 9.9.2005, the date of enforcement of Amendment Act, the daughters became coparceners by birth, in their own right with the same liability in the coparcenary property as if she had been a son.

(v) The Explanation contained under Section 6(1) concerning conferral of rights as coparcener, daughter as coparcener, shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004.

(vi) After substitution of the provisions of section 6, the devolution of coparcenary by survivorship has been abrogated. Now in case of death of coparcener, male/female, the coparcenary interest would not devolve by survivorship but by intestate succession under the provisions of the Hindu Succession Act or based on testamentary succession.

(vii) The decision in Prakash v. Phulavati to the effect that there should be a living daughter of a living coparcener on the date of commencement of the Act of 2005 fails to appreciate that coparcenary rights are by birth. The death of a Hindu coparcener father or any other coparcener is only relevant for the succession of his coparcenary interest under section 6(3) of the Act of 2005. The death of any coparcener does not bring to an end any coparcenary. An increase or decrease in the coparcenary interest independently held by each coparcener may occur by birth or death. On the coparcener’s death, the notional partition is drawn only to determine his coparcenary’s interest. It does not disturb the other incidents of the coparcenary, it can continue without disruption with other coparceners, and even new coparceners can be added on account of birth till the time an actual partition takes place. Coparcenary interest becomes definite only when a partition is effected.

(viii) The daughter of a coparcener in section 6 does not imply the daughter of a living coparcener or father, as the death of the coparcener/father does not automatically lead to the end of coparcenary, which may continue with other coparceners alive. Thus, the coparcener, from whom the daughter is inheriting by her being coparcener, needs not to be alive as on the commencement of the Amendment Act of 2005.

(ix) The Explanation to Section 6(5) was not provided in the original amendment Bill moved before the Rajya Sabha on 20.12.2004, which came to be added later.

(x) Often, coparceners enter into a family arrangement or oral partition, and it may not be necessary to register such a partition. Explanation to section 6(5) of the Amendment Act requires the partition to be registered, was inserted to avoid any bogus or sham transactions. Considering the entire scheme of the Amendment Act, the requirement of registered partition deed is directory and not mandatory. Any coparcener relying upon any family arrangement or oral partition must prove the same by leading proper documentary evidence.

11. Shri R. Venkataramani, learned senior counsel/amicus curiae, argued as under:

(a) There is no conflict between the decisions in Prakash v. Phulavati (supra) and Danamma v. Suman (supra). In both the decisions, the provisions of section 6 have been held to be of prospective application. The amendment is a prospective one. The declaration by the law that the daughter of a coparcener has certain entitlements and be subject to certain liabilities is prospective. The daughter is treated as a coparcener under the amendment Act and not because of the daughter’s birth prior to the amendment.

(b) Unlike the joint tenancy principle in English law, a joint Hindu family stands on a different footing. Every son by birth became a coparcener, and because of birth, the son became entitled to be a coparcener in the joint Hindu family property entitled to claim partition with or without reference to the death of the Karta of a joint Hindu family. Like a son born into the family, an adopted son is also entitled to succeed to the joint family property. He becomes a coparcener with adoptive father, but his relationship with the natural family is severed, including his status as a coparcener in the family of birth as laid down in Nagindas Bhagwandas v. Bachoo Hurkissondas, AIR 1915 PC 41 and Nanak Chand & Ors. v. Chander Kishore & Ors., AIR 1982 Del. 520.

(c) A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows, and unmarried daughters bound together by the fundamental principle of a Sapindaship of family relationship is the essence and distinguishing feature of the institution of the coparcenary. A joint family may consist of a single male member and widows of deceased male members. This body is purely a creature of law and cannot be created by an act of parties, as observed in G. Narasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249; and State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33. An undivided family which is the normal condition of Hindu society is ordinarily joint not only in the estate but in food and worship, and, therefore, not only the concerns of the joint family but whatever relates to their commensality and their religious duties are regulated by the member or by the manager to whom they have expressly or by implication delegated the task of regulation as held in Raghunadha v. Brozo Kishore, 3 IA 154 (PC). The coparcener status being the result of birth; possession of the joint property is only an adjunct of the joint family and is not necessary for its constitution, as discussed in Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR 1926 Bom. 408.

(d) A Hindu coparcenary is said to have seven essential characteristics, which include that the interest of a deceased member survives on his death and merges in the coparcenary property as observed in Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385. As a result, if father or any other coparcener has died before the Amendment Act, 2005, the interest of father or another coparcener would have already merged in the surviving coparcenary. Consequently, there will be no coparcener alive, from whom the daughter will succeed. Thus, the daughter can succeed only in the interest of living coparcener as on the date of enforcement of the Amendment Act.

(e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, it was observed that as a logical corollary and counter­balance to the principle before the amendment, that the son from the moment of his birth, acquires an interest in the coparcener, a pious obligation is imposed on him to pay his father’s debts incurred for the purpose which is not illegal or immoral.

(f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 PC 62, it was observed that there is a difference between coparcenary in Hindu law, which is not identical with coparcenary as understood under the English law. In the case of death of a member of a coparcenary under the Mitakshara law, his right accretes to other members by survivorship while under the English law if one of the co­ heirs jointly inheriting property dies, his or her right goes to his or her relations without accreting to surviving coparceners.

(g) By birth and adoption, a male becomes a coparcener. The custom of adoption is of ancient origin, as observed in Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC 155, and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma & Ors., 26 IA 113. The adoption at the relevant time was only of male and not of a female as the custom related to succession to the property, as discussed in Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19 IA 101.

(h) By the expression used in the amended section 6, the daughter becomes coparcener by birth. The retrospective effect is not intended to be given to the provisions of section 6. Though equality has been brought in, w.e.f. 2005, the incidence of birth of a daughter before 2005 is of no consequence and not to reopen the past transactions.

(i) The oral partition and family settlement are not intended to be reopened by section 6(1) and 6(5).

(j) If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law. It can be stated that the Parliament has not intended to scramble the unscrambled egg or to resurrect the past.

(k) Challenges to partition had always come when any member of a coparcenary, including an adopted son, stood deprived of the entitlement to succeed to the joint family property.

(l) The scheme of section 6 is future and forward­looking, and it has to be interpreted in such a manner that its relevance is not diluted. Now the rights of a coparcener have been enlarged, and the provision has disabled it from defeating the right of a daughter from being treated equally.

(m) In the light of the decision in Shashikalabai (Smt) v. the State of Maharashtra & Anr., (1998) 5 SCC 332, the past transactions cannot be reopened. Thus, the daughter, whose coparcener father, was alive on the date of incorporation of provisions of section 6, will be treated as a coparcener. Any other interpretation would cause unjust consequences.

12. Shri V.V.S. Rao learned amicus curiae/senior counsel, argued that:

(a) the logic of Prakash v. Phulavati has been upheld in Mangammal v. T.B. Raju, (2018) 15 SCC 662. It was held that there should be a living daughter of a living coparcener to inherit the property on the date of enforcement of the amended provisions of the 2005 Act.

(b) Section 6(1)(a) declares a daughter to be a coparcener by birth.

By the declaration, a daughter stands included in coparcenary. As the declaration is to the effect that the daughter is to become coparcener by birth, the question of prospectivity or retrospectivity will not arise— daughter, whether born before 2005 or after that, is considered a coparcener.

(c) Section 6(1)(b) and (c) deal with the effects of inclusion of daughter as a coparcener. Having regard to the plain language and future perfect tense “shall have the same rights,” the only conclusion is that the daughters who are included in the coparcenary will have the same rights after coming into force of the Amendment Act. The future perfect tense indicates that an action will have been completed (finished or perfected) at some point in the future. This tense is formed with “will” plus “have” plus the past participle of the verb. If the Parliament had intended to mean as conferring the same rights in the coparcenary, anterior to the amendment, the language would have been different. The future perfect tense indicates that action will have to be completed at some point in time in the future. The tense is formed with “will” plus “have” plus the past participle of the verb. If the Parliament intended to mean conferring the same rights in the coparcenary, anterior to the amendment, the language would have been different. If the daughter is now made a coparcener, she would now have the same rights as she is a son.

(d) The legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property.

(e) The 174th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

(f) The Parliament Standing Committee report indicates that the Ministry proposed giving the benefit of the provision of this Bill to married daughters after the commencement of the proposed amending legislation.

(g) It was proposed in the report that nothing in the amended section 6 shall apply to a partition that has been effected before the commencement of the Amendment Act.

(h) Deliberations by the Committee also indicate that concerning the partition effected through oral means, it was opined that it would depend upon the facts of a particular case. As per the prevailing law, it was not necessary that a partition should be registered. There can be an oral partition also, as the law does not prohibit it. At the same time, the Committee observed that the term ‘partition’ should be defined appropriately, and for all practical purposes, should be registered or should have been effected by a decree of the Court. In case where oral partition is recognised, it should be backed by proper evidentiary support.

(i) The Parliament intended to confer the status of a coparcener from the birth of a daughter. However, it was never intended to confer her the rights in the coparcenary property retrospectively, for the following reasons:

a. Section 6(1)(a) deals with the inclusion of a daughter in the coparcenary “on and from the commencement of amendment Act 2005, w.e.f. 9.9.2005;

b. The operating part of section 6(1) controls not only clause (a) but also clauses (b) and (c);

c. Hence the daughter who is declared as coparcener from 9.9.205 would have the right in a coparcenary property only from 9.9.2005;

d. Equally, a daughter who is now coparcener will be subject to the same liabilities in respect of property only from 9.9.2005.

(j) Conferment of coparcenary status shall take effect on and from the commencement “of the Amendment Act.” The use of the words “on and from” in section 6(1) indicates that the daughter becomes coparcener from the commencement of the Act. The daughter of a coparcener shall by birth become a coparcener, have the same rights and be subject to the same liabilities. The word “shall” indicates the due status of the daughter as coparcener is created only for the future and would not affect the existing rights of a male coparcener. The use of the words “become,” “have,” and “be” are all present tenses, and they reiterate to support the above­suggested interpretation.

(k) In the Bill recommended by the Law Commission and the Bill introduced, the Explanation to section 6(5) was not mentioned. It was introduced only on the recommendations of the Parliamentary Committee. Thus, the concept of partition by registered deed and

decree of the Court were introduced. It follows that on a daughter becoming coparcener from a particular date, she cannot prospectively affect the share of a coparcener, which was already fixed as held in Prakash v. Phulavati.

(l) The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition – oral or written.

(m) Partition could be in the form of a memorandum of partition, or it could also be made orally. In most of the families, there used to be an oral partition. Once parties settle their rights, the partition effected orally cannot be ignored to give shares to the daughters. Such legal transactions cannot be unsettled; the Explanation safeguards all genuine transactions of the past, including oral partition effected by the parties. The Explanation should not be understood as invalidating all other documents recording partition or oral partition in respect of coparcenary property before 20.12.2004.

(n) Daughters conferred with the status of coparcener under the Amendment Act cannot challenge past transactions that took place before 20.12.2004, and the daughter should be alive as on the date of amendment. There should be ‘living coparcener’ to whom the daughter can inherit to become a coparcener.

13. Shri Sridhar Potaraju, learned counsel, vociferously argued that:

(a) The decision in Prakash v. Phulavati adopted the correct interpretation of the provision. Married daughters are not considered as part of the father’s joint family. They were recognised as Class I heirs that, by itself, did not make them part of their father’s joint Hindu family. He has relied upon Surjit Lal Chhabda v. Commissioner of Income Tax, (1976) 3 SCC 142. A married daughter ceases to be a member of the father’s family and becomes a member of her husband’s family.

(b) As considered by P. Ramanatha Aiyar in Major Law Lexicon, the land is held in coparcenary when there is the unity of title, possession, and interest. A Hindu coparcenary is a narrower body than the joint family. A coparcener shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners are such as have an equal portion in the inheritance of an ancestor. The share of a coparcener is undefined and keeps fluctuating with the birth and death of a coparcener. When a male is born, he becomes a coparcener, thereby decreasing the share of other coparceners. In the event of the death of a coparcener, the rule of survivorship comes into play, and the estate devolves on the surviving coparceners to the exclusion of heirs of the deceased coparcener. Status of a coparcener is a creation of law commencing with birth and ending with death or by severance of such status by way of partition or statutory fiction. The status of coparcenary ceases on death.

(c) “Daughter of a coparcener” means the daughter of an alive person and has the status of a coparcener on the date of commencement of the Amendment Act. In case a statutory partition has taken place, the same is required to be recognised. It would bring severance of jointness of status and settle the share.

(d) If a preliminary decree of partition has been passed and has attained finality, it must be given effect. The mere filing of a suit for partition is sufficient to effect a partition. On separation of status, the decree is passed by a court as held in Puttrangamma & Ors. v. M.S. Ranganna & Ors., AIR 1968 SC 1018.

(e) What rights have been conferred by way of survivorship are not intended to be taken away except as provided by the amended proviso in section 6(3) of the Amendment Act.

(f) A legal fiction created in law cannot be stretched beyond the purpose for which the fiction has been created, as held in Mancheri Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6 SCC 185.

(g) Statutory partition leads to disruption. A statutory partition, as provided in section 6(3), is to be given full effect. The same leads to severance of status of jointness of the deceased coparcener and his legal heirs, which shall include the right of maintenance from the joint family of the widow of the deceased coparcener and such other rights. Such partition brings an end to the joint family. In the case of death of the father of petitioner in 1963, notional partition would occur and the consequences laid down in Anar Devi & Ors. v. Parmeshwari Devi & Ors., (2006) 8 SCC 656 would follow.

(h) The married daughters on the death of father in 1963 were not entitled to a share in the coparcenary property. Only sons were entitled to equal shares, and sons obtained the property by way of survivorship. The statutory partition under unamended Section 6 was considered in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & Ors., (1978) 3 SCC 383. Statutory partition has been in existence in section 6 since 1956 and is continued by the 2005 Amendment.

(i) Section 6, as amended, is not applicable in the case of a daughter whose father is not alive at the time of the introduction of provisions of section 6. Every member of a joint Hindu family is not entitled to be a coparcener either under the traditional Hindu law or under the Hindu Succession Act, 1956 or the Amendment Act, 2005. Under Section 29A introduced in the State of Andhra Pradesh, unmarried daughters were given the rights of a coparcener while excluding married daughters. The Central Amendment has not made a distinction based on the daughter’s marital status expressly but has made it evident by the use of the expression ‘joint Hindu family’ and ‘daughter of a coparcener.’ The provisions should be read to exclude married daughters. The provisions of section 6, as amended, are prospective. It was not intended to unsettle the settled affairs.

(j) The Explanation to section 6(5) cannot be interpreted to take away the rights crystallised upon the surviving coparceners of the joint family under the statutory partition. The purpose of the Explanation was considered in S. Sundaram Pillai & Ors. v. V. R. Pattabiraman & Ors., (1985) 1 SCC 591 thus:

“53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is—
“(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same to make it consistent with the dominant object it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.”

(k) A preliminary decree determines the shares. Section 2(2) of the Code of Civil Procedure defines ‘decree’ to mean the formal expression, which clarifies that a decree is preliminary when further proceedings have to be taken before the suit can be decided entirely. In so far as the determination of individual shares to be allotted to parties to the suit is concerned, the preliminary decree is final. After the dismissal of Special Leave Petition (C) No.38542/2016 in Sistla Sarada Devi v. Uppaluri Hari Narayana & Ors., the only step required to be taken is to apportion the shares by metes and bounds in terms of the preliminary decree which was passed. The daughters born after the commencement of the Amendment Act become coparceners, and daughters born before the commencement of the Amendment Act have been covered under section 6(1)(b) and granted the same rights in coparcenary as given to a son. The daughters born before and after the amendment covered under section 6 are given the status of a coparcener. The status of a coparcener to daughters cannot be given from the date of birth, and they cannot be made liable for all the liabilities of coparcenary property. The benefit cannot be conferred from the date of birth as it would relate in several cases to date of birth even in the year 1925. All liabilities are to be borne only from the amendment; as such, the provisions are not retrospective.

(l) Even alternatively, if the status of coparcenary on the daughter is to be conferred retrospectively, the limitations governing such legal fiction will have to take into consideration the implications of (i) statutory partition; (ii) court’s decree; and (iii) legitimate alienation of the property by Karta/coparceners, prior to commencement of the Amendment Act. All other dispositions or alienations, including any partition or testamentary disposition of property made before 20.12.2004, are required to be saved as earlier the daughters were not coparceners. On a statutory partition, the property becomes the self­ acquired property and is no more a coparcenary property.

(m) Even in a case of adoption, the past transactions are saved while applying the theory of relation back as laid down in Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar & Ors., (1974) 2 SCC 156. Thus, the provisions of section 6 are to be construed prospectively.

14. Shri Amit Pai, learned counsel, strenuously urged that:

(a) The golden rule of interpretation is required to be adopted as laid down in Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR 360. The rule of literal construction is relied upon, as observed in Lt. Amrendra Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140.

(b) The substitution of the provision of section 6 dates back to the commencement of the Principal Act of 1956. A notional partition on the death of a coparcener to ascertain his share is not an actual partition. The same is not saved by the proviso contained in section 6. A daughter cannot be deprived of the right to equality as per the Statement of Objects and Reasons. The provision of section 6 is required to be given full effect.

(c) The decision in Prakash v. Phulavati cannot be said to be laying down the law correctly. The concept of living daughter of a living coparcener is adding to the text of provisions of section 6, whereas no word can be added or read into a statute by the Court. It can only repair errors or supply omissions. It is for the legislature to provide such a concept of a daughter of a living coparcener. Thus, it was argued that section 6 includes all living daughters of coparceners, irrespective of whether such coparceners are deceased or alive at the commencement of the 2005 Amendment.

15. Shri Sameer Shrivastava, learned counsel, urged that:

(a) The term ‘coparcener’ is not defined in the Succession Act. This Court considered it in Sathyaprema Manjunatha Gowda (Smt) v. Controller of Estate Duty, Karnataka, (1997) 10 SCC 684. It is a narrower body than a joint family and consists of only those persons who have taken by birth, an interest in the property, and can enforce a partition, whenever they like. The daughter is entitled to share in the property subject to the restrictions provided under sub­section (1) and sub­section (5) of amended section 6.

(b) Section 6(3) provides a consequence of the death of a coparcener, devolution on the death of a coparcener after the commencement of the Amendment Act. The concept of survivorship has been done away. Testamentary or intestate succession has been provided where a Hindu dies before the commencement of the Amendment Act. The relevant provisions are section 6(1)(2), where male Hindus are given the right by birth to become a coparcener, and they have the right to take a partition with coparcenary property.

(c) The decision in Prakash v. Phulavati, laying down that section 6 as amended applies in case of living daughters of a living coparcener, is arbitrary and non­est in the eye of law. Both sons and daughters of coparceners are conferred the right of becoming coparcener by birth. Birth in coparcenary creates interest. The only other exception is by way of adoption. Coparcenary incident is the right to the severance of the status of partition.

16. Ms. Anagha S. Desai, learned counsel, strenuously urged that section 6 provides parity of rights in coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The declaration in section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal. The daughter is entitled to a share in the ancestral property. She has relied upon Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788.

17. When a daughter, who is claiming and demanding a share in the coparcenary, is alive, there is no difficulty of interpretation, irrespective of the fact whether a coparcener has died before the commencement of the Amendment Act. The coparcener and the daughter do not need to be alive as on the date of the amendment. If it is to be interpreted that coparcener and daughter both should be alive, it will defeat the very purpose and objective of the amended provisions. Earlier, the provisions of Hindu law treated a son as a coparcener by birth; now, daughters are given the same rights since birth. In case partition has been effected by metes and bounds and is adequately proved, then the daughter of coparcenary cannot seek partition of already divided property.

In Ref. Historical Background

18. The Hindu branch of dharma is influenced by the theological tenets of the Vedic Aryans. What is not modified or abrogated by the legislation or constitutional provisions still prevails, the basic Hindu law emanates from Vedas and past shrutis/smritis. Various dharma shastras regard custom as the basis of Hindu law as administered from time to time. Law has advanced and made progress as per the requirements of the society and the prevailing ethos. The justice used to be administered by the emperors resolving the conflicts. The building of law has taken place over time. There are two main schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara has further been sub­divided into four schools, i.e., Benares, Mithila, Maharashtra or Bombay, and Dravida or Madras school. Benares, Mithila, Dravida, and Maharashtra denote old names of the territories.

19. The application of schools of Mitakshara is region­wise. There has been re­organization of States in 1956, and after that, some confusion has arisen concerning the administration of Bombay school and Benares School. Benares school practically governs the whole of Northern India. The Bombay school covers Western India and various other territories. The certain States were re­organized by the State Reorganisation Act of 1956. In some regions of reorganised States, given the common name, different schools apply. Take, for example, Madhya Pradesh. It consists of territories to which both Bombay and Benares schools are applicable. However, various authors of Hindu law have failed to note the fact in which parts of the State of M.P. after reorganisation which school is applicable. A reference is found to tenets of Bombay school of Hindu law in the entire State of M.P., whereas Benares school is applicable in various parts of Madhya Pradesh. It was clarified by a Full Bench of Madhya Pradesh High Court in Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ­202, and a Division Bench decision was relied on in FA No.31/1968 decided on 14.12.1976. In integrating State of Madhya Bharat and some other parts of Madhya Pradesh, Benares school is applicable, not Bombay.

20. Mitakshara law applies to most parts of India except Bengal. Maharashtra school prevailed in North India, Bombay school, in Western India. However, certain areas in Southern India are governed by Marumakkatayam, Aliyasantana, and Nambudiri systems of law.

21. Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law. In particular, women’s rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices. Necessity was also felt after the independence, given the constitutional imperatives to bring about equality of status, the codified law has been amended from time to time. The latest attempt has been made by way of amending the Hindu Succession Act concerning rights of daughter to be a coparcener in Mitakshara coparcenary and has been given the rights equal to that of a son.

In Ref. Coparcenary and Joint Hindu Family

22. A joint Hindu family is a larger body than a Hindu coparcenary.

A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. A joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation, as observed in Sri Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154.

23. Hindu coparcenary is a much narrower body. It consists of propositus and three lineal descendants. Before 2005, it included only those persons like sons, grandsons, and great­grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great­grandson, and E is a great­great­grandson. The coparcenary will be formed up to D, i.e., great­grandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confined to three lineal descendants. Since grandsons and great­grandsons become coparceners by birth, they acquired an interest in the property.

24. Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners.

25. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great­grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded.

In Ref. Formation of Coparcenary

26. For interpreting the provision of section 6, it is necessary to ponder how coparcenary is formed. The basic concept of coparcenary is based upon common ownership by coparceners. When it remains undivided, the share of the coparcener is not certain. Nobody can claim with precision the extent of his right in the undivided property. Coparcener cannot claim any precise share as the interest in coparcenary is fluctuating. It increases and diminishes by death and birth in the family.

27. In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2 SCC 77, the Court discussed essential features of coparcenary of birth and sapindaship thus:
“17. Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property. But it is there from the ancient time perhaps, as a social necessity. A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters. They are bound together by the fundamental principle of sapindaship or family relationship, which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another.

18. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than a joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners. [See: Hindu Law by N.R. Raghavachariar, 8th Edn., p. 202]”
(emphasis supplied)

28. In case coparcenary property comes to the hands of a ‘single person’ temporarily, it would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law. In Sheela Devi v. Lal Chand, (2006) 8 SCC 581, it was observed:

“12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten (See C. Krishna Prasad v. CIT, (1975) 1 SCC 160). But once a son is born, it becomes a coparcenary property, and he would acquire an interest therein.”

In M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC 184, similar opinion was expressed thus:
“29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.”
(emphasis supplied)

In Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343, it was held:
“3. x x x under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess…..”

In Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe & Ors., (1988) 2 SCC 126, it was held that joint family property retains its character even after its passing on to the hands of a sole surviving coparcener. If a son is subsequently born or adopted, the coparcenary will survive, subject to saving the alienations made in the interregnum.

29. In Ghamandi Ram (supra), the formation, concept and incidents of the coparcenary were discussed thus:

“5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Ch. I, 1-27). The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by Act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter. In Sundaranam Maistri v. Harasimbhulu Maistri and Another, ILR 25 Mad 149 at 154.

Mr Justice Bhashyam Ayyangar stated the legal position thus:

“The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant v. Narayan Bhond Savant) [ILR 7 Bom 467] and Mayne’s ‘Hindu Law and Usage’, (6th edition, Paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz. the undivided state — it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by Act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family.”

6. Adverting to the nature of the property owned by such a family the learned Judge proceeded to state:

“As regards the property of such family, the ‘unobstructed heritage’ devolving on such family, with its accretions, is owned by the family, as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate ‘unobstructed heritage’ which, with its accretions, may be exclusively owned by such branch as a corporate body.”
(emphasis supplied)

30. Essential characteristics of coparcenary, as discussed in the above­mentioned decision in Ghamandi Ram (supra), were analysed in Controller of Estate Duty v. Alladi Kuppuswamy, (supra), thus:

“8. ….”Thus analysing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property. Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting Condition (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary. In other words, after her husband’s death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition is made, her dominion extends to the entire property conjointly with the other members of the coparcenary, her possession and enjoyment is common, the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest in the property which may be increased or decreased by deaths or additions in the family. It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956, she had the characteristic of a widow-estate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937.”

31. In Controller of Estate Duty (supra), it has also been laid down that if a widow does not exercise her right of partition, there is no severance of the Hindu coparcenary and on her death, the interest of the widow merges in the coparcenary property or lapses to the other coparceners. It was observed that the male issue of coparcener acquires an interest in the coparcenary by birth, not as representing his father.

32. This Court in Controller of Estate Duty (supra), placed reliance on Satrughan Isser v. Sabujpari, & Ors., AIR 1967 SC 272. In case the right to partition by a widow has not been exercised, there is no severance of Hindu coparcenary, and on death of coparcener, there is no dissolution of coparcenary. In Satrughan (supra), it was held:

“7. By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener: though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property: Lakshmi Perumallu v. Krishnavanamma. The interest acquired by her under Section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, is a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition or her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband. It is true that a widow obtaining an interest in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased to have the character of undivided interest in the property, it will upon termination of her estate devolve upon her husband’s heirs. To assume as has been done in some decided cases that the right of the coparceners to take her interest on determination of the widow’s interest survives even after the interest has become definite, because of a claim for partition, is to denude the right to claim partition of all reality.”

33. In Bhagwan Dayal (since deceased) & Anr. v. Mst. Reoti Devi, AIR 1962 SC 287, it was held that coparcenary is a creature of law and branch of the family was a subordinate corporate body and discussed the proposition thus:

“47. x x x Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritance and not by survivorship.”
(emphasis supplied)

34. In Kalyanji Vithaldas & Ors. v. Commissioner of Income Tax, Bengal, AIR 1937 PC 36, the concept of Hindu Undivided Family was considered thus:
“ The phrase “Hindu undivided family” is used in the statute with reference, not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words “Hindu coparcenary”-all the more that it is not possible to say on the face of the Act that no female can be a member ”
(emphasis supplied)

In Gowli Buddanna v. Commissioner of Income Tax, Mysore, AIR 1966 SC 1523, it was held that coparcenary is narrower body than joint family thus:

“6. x x x A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners. x x x”
(emphasis supplied)

The difference between joint Hindu family and coparcenary was considered in Surjit Lal Chhabda v. The Commissioner of Income Tax, Bombay, (supra) thus:

“13. Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption:

“The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence, (1908) 32 Bom. 479.””
(emphasis supplied)

35. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh & Ors., (1985) 2 SCC 321, characteristics of joint family and coparcenary were culled out. It was also held that interest of a female member of a joint Hindu family getting fixed, on her inheriting interest of a deceased male member of the family. She would not cease to be a member of family unless she chooses to become separate by partition, thus:

“8. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary, A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. (See Gowli Buddanna v. CIT, AIR 1966 SC 1523 and Sitabai v. Ram Chandra, (1969) 2 SCC 544). A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be two male members to constitute a joint family. (See N.V. Narendranath v. C.W.T., (1969) 1 SCC 748). While under the Mitakshara Hindu law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no unity of ownership of coparcenary property with the members thereof. Every coparcener takes a defined share in the property and he is the owner of that share. But there is, however, unity of possession. The share does not fluctuate by births and deaths. Thus it is seen that the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law.

10. We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow from the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members, the members thereof do constitute a family. That might also be the case of families of persons who are not Hindus. In the instant case the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed.”
(emphasis supplied)

36. The essential feature is aggregate ownership, i.e., ‘Samudavika Swatwa’ in coparcenary and the share keeps on fluctuating, was observed in Commissioner of Income Tax, Poona v. H.H. Raja of Bhor, (1967) (65) ITR 634 thus:

“…… no individual member of a Hindu coparcenary, while it remains undivided, can predicate of the joint and undivided property, that he, or any particular member, has a definite share, one-third or one-fourth – (Lord Westbury in Approvier v. Rama Subha Aiyan, (1866 11 MIA 75). His interest in the coparcenary property is a fluctuating interest which is capable of being enlarged by death in the family. It is only on partition that the coparcener is entitled to a definite share. But the important thing to notice is that the theory of ownership being acquired by birth has given rise to the doctrine of Samudavika swatwa or aggregate ownership in the Mitakshara school. Till partition therefore all the coparceners have got rights extending over the entirety of the coparcenary property……”
(emphasis supplied)

37. In Vellikannu v. R. Singaperumal & Anr., (2005) 6 SCC 622, this Court restated that the share of a member of a coparcenary fluctuates from time to time is a settled proposition of law. It was held:

“11. So far as the property in question is concerned, there is a finding of the courts below that the property is a coparcenary property and if that being so, if Defendant 1 had not murdered his father then perhaps things would have taken a different shape. But what is the effect on the succession of the property of the deceased father when the son has murdered him? If he had not murdered his father he would have along with his wife succeeded in the matter. So far as the rights of coparceners in the Mitakshara law are concerned, the son acquires by birth or adoption a vested interest in all coparcenary property whether ancestral or not and whether acquired before or after his birth or adoption, as the case may be, as a member of a joint family. This is the view which has been accepted by all the authors of the Hindu law. In the famous principles of Mulla, 15th Edn. (1982) at pp. 284 and 285, the learned author has stated thus:
“The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest’. The nature and extent of that interest is defined in Section 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. As observed by the Privy Council in Katama Natchiar v. Rajah of Shivagunga, (1863) 9 MIA 543, ‘there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased’s lifetime a common interest and a common possession’.”

13. In N.R. Raghavachariar’s Hindu Law — Principles and Precedents, 8th Edn. (1987) at p. 230 under the heading “Rights of Coparceners” it is said thus: “The following are the rights of a coparcener.—(1) Right by birth, (2) Right of survivorship, (3) Right to partition, (4) Right to joint possession and enjoyment, (5) Right to restrain unauthorised acts, (6) Right of alienation, (7) Right to accounts, and (8) Right to make self-acquisition.” While dealing with “Right by Birth” learned author says thus: “Every coparcener gets an interest by birth in the coparcenary property. This right by birth relates back to the date of conception. This, however, must not be held to negative the position that coparcenary property may itself come into existence after the birth of the coparcener concerned.”

While dealing with right of survivorship, it is said thus:

“The system of a joint family with its incident of succession by survivorship is a peculiarity of the Hindu law. In such a family no member has any definite share and his death or somehow ceasing to be a member of the family causes no change in the joint status of the family. Where a coparcener dies without male issue his interest in the joint family property passes to the other coparceners by survivorship and not by succession to his own heir. Even where a coparcener becomes afflicted with lunacy subsequent to his birth, he does not lose his status as a coparcener which he has acquired by his birth, and although his lunacy may under the Hindu law disqualify him from demanding a share in a partition in his family, yet where all the other coparceners die and he becomes the sole surviving member of the coparcenary, he takes the whole joint family property by survivorship, and becomes a fresh stock of descent to the exclusion of the daughter of the last predeceased coparcener, a case of leprosy of the last surviving coparcener. The beneficial interest of each coparcener is liable to fluctuation, increasing by the death of another coparcener and decreasing by the birth of a new coparcener.”

Therefore, it is now settled that a member of a coparcenary acquires a right in the property by birth. His share may fluctuate from time to time but his right by way of survivorship in coparcenary property in Mitakshara law is a settled proposition.
(emphasis supplied)”

38. In Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC 419, the concept of coparcenary of sharing equally with others and no definite share, was discussed thus:

“11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.”
(emphasis supplied)”

39. A similar view was taken in Thamma Venkata Subramma (dead) by LR v. Thamnma Ratamma & Ors., (1987) 3 SCC 294, that the share is not defined in coparcenary. It keeps on fluctuating on death and birth in the family.

40. It is only on actual partition a coparcener becomes entitled to a definite share. The interest of a coparcener is called “undivided coparcenary interest,” which remains undivided as held by the Privy Council in Katama Natchiar v. Srimat Rajah Moottoo Vijaya Raganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863) 9 MIA 543.

In Shankara Cooperative Housing Society Ltd. v. M. Prabhakar & Ors., (2011) 5 SCC 607, it was observed that coparcenary be collective ownership. If a suit for recovery of property is filed, it is for the benefit of all co­owners. The position of ownership of co­ownership property indicates a change when actual division takes place, and co­owner’s share becomes identifiable. In Shankara Cooperative, it was observed:

“85. Shri Ranjit Kumar, learned Senior Counsel, contends that the writ petition was filed by one of the co-owners of late Mandal Buchaiah and judgment and order passed would not bind the other parties. We cannot agree. It is a settled law that no co- owner has a definite right, title and interest in any particular item or portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. Our conclusion is fortified by the view expressed by this Court in A. Viswanatha Pillai v. Tahsildar (LA), (1991) 4 SCC 17 in which this Court observed: (SCC p. 21, para 2)

“2. … It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. In Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814, this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184, and Pal Singh v. Sunder Singh, (1989) 1 SCC

444. A co-owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co- owner’s property was not its own. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected by metes and bounds. Therefore, a co- owner of the property is an owner of the property acquired but entitled to receive compensation pro rata.””
(emphasis supplied)

41. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986) 1 SCC 366, a 3­Judge Bench of this Court held that character of a joint family property does not change with the severance in the status of the joint family before an actual partition takes place. It was observed thus:

“14. …The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.”

42. In Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer & Anr., AIR 1952 SC 72, it was held that once a coparcener separates himself from other members of the joint family, there is no presumption that rest of the coparceners continued to be joint, it would be a question of fact in each case. Following discussion was made:

“7. x x x The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but …… where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiff’s side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief….”

In Ref. Unobstructed and obstructed heritage

43. In Mitakshara coparcenary, there is unobstructed heritage, i.e., apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birthright is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner’s existence. It is only on his death that obstructed heritage takes place. Mulla on Hindu Law has discussed the concept thus:

“216. Obstructed and unobstructed heritage. – Mitakshara divides property into two classes, namely, apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage.

(1) Property in which a person acquires an interest by birth is called unobstructed heritage, because the accrual of the right to it is not obstructed by the existence of the owner.

Thus, property inherited by a Hindu from his father, father’s father, or father’s father’s father, but not from his maternal grandfather, 1 is unobstructed heritage as regards his own male issue, i.e., his son, grandson, and great-grandson.2 His male issues acquire an interest in it from the moment of their birth. Their right to it arises from the mere fact of their birth in the family, and they become coparceners with their paternal ancestor in such property immediately on their birth, and in such cases ancestral property is unobstructed heritage.

Property, the right to which accrues not by birth but on the death of the last owner without leaving a male issue, is called obstructed heritage. It is called obstructed, because the accrual of right to it is obstructed by the existence of the owner.

Thus, property which devolves on parents, brothers, nephews, uncles, etc. upon the death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner. Until then, they have a mere spes successionis, or a bare chance of succession to the property, contingent upon their surviving the owner.3

(2) Unobstructed heritage devolves by survivorship; obstructed heritage, by succession. There are, however, some cases in which obstructed heritage is also passed by survivorship.”

44. It is apparent that unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It

1 Muhamad Hussain v. Babu Kishava Nandan Sahai, (1937) 64 IA 250 : (1937) All 655: 39 Bom LR 979: 169 IC 1: AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995 MP 92 (property inherited from person other than father, father’s father, or father’s father’s father is obstructed heritage).

2 Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331.

3 Mitakshara, Ch.I, S 1, v 3. is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death. Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6. In Ref. Section 6 of the Act of 1956

45. Section 6 of the Act of 1956 before the substitution by Amendment Act, 2005 is reproduced hereunder:

“6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I.—For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

46. The substituted provision of section 6 by the Amendment Act, 2005 is extracted hereunder:

“6. Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 , in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub- section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 , his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre- deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre- deceased son or a pre- deceased daughter, as the case may be.

Explanation.- For the purposes of this sub- section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 , no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 , nothing contained in this sub- section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.- For the purposes of clause (a), the expression” son”,” grandson” or” great- grandson” shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 .

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.- For the purposes of this section” partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908 ) or partition effected by a decree of a court.’.”

47. Statement of Objects and Reasons behind the introduction of Bill is reproduced as under:

“STATEMENT OF OBJECTS AND REASONS

The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on “Property Rights of Women: Proposed Reform under the Hindu Law”.

5. The Bill seeks to achieve the above objects. NEW DELHI; The 16th December, 2004.”

48. Section 6 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. The originally enacted provision of section 6 excluded the rule of succession concerning Mitakshara coparcenary property. It provided the interest of a coparcener male Hindu who died after the commencement of Act of 1956, shall be governed by survivorship upon the surviving members of the coparcenary. The exception was provided that if the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of such coparcener shall devolve by testamentary or intestate succession, as the case may be, in order to ascertain the share of deceased coparcener, the partition has to be deemed before his death. Explanation 2 disentitled the separated person to make any claim in case of intestate succession.

49. Though the widow or daughter could claim a share, being a Class I heir in the property left by the deceased coparcener, and a widow was entitled, having a right to claim a share in the event of partition daughter was not treated as a coparcener. The goal of gender justice as constitutionally envisaged is achieved though belatedly, and the discrimination made is taken care of by substituting the provisions of section 6 by Amendment Act, 2005.

50. Concerning gender discrimination to a daughter who always remains a loving daughter, we quote Savita Samvedi (Ms) & Anr. v. Union of India & Ors., 1996 (2) SCC 380, thus:

“6. A common saying is worth pressing into service….

“A son is a son until he gets a wife. A daughter is a daughter throughout her life.”

7. …The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), …..to claim the benefit…..

…(Otherwise, it would be) unfair, gender-biased and unreasonable, liable to be struck down under Article 14 of the Constitution. … It suffers from twin vices of gender discrimination inter se among women on account of marriage.”

51. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of sub­section (1) contains a non­ obstante clause providing that nothing contained in the sub­section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004.

52. It is apparent from the provisions of section 6 that the discrimination with the daughter has been done away with, and they have been provided equal treatment in the matter of inheritance with Mitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra, the State Amendments in the Act of 1956 were made to extend equal rights to daughters in Hindu Mitakshara coparcenary property. An amendment was made on 30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In­State of Andhra Pradesh, the amendment was made, w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala, the Act was enacted in 1975.

53. Before the amendment, section 6 provided that on the death of a male Hindu, a coparcener’s interest in Mitakshara coparcenary shall devolve by survivorship upon the surviving members of the coparcenary under the uncodified Hindu law and not in accordance with the mode of succession provided under the Act of 1956. It was provided by the proviso to section 6, in case a male Hindu of Mitakshara coparcenary has left surviving a female relative of Class I heir or a male relative who claims through such female relative of Class I. The Schedule containing categories of Class I heirs is extracted hereunder:

“THE SCHEDULE
(See section 8)

HEIRS IN CLASS I AND CLASS II Class I

Son, daughter, widow; mother; son of a pre-deceased son; daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter; widow of a pre-deceased son, son of a pre- deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre- deceased son; [son of a pre-deceased daughter of a pre-deceased daughter, daughter of a pre-deceased daughter of a pre-deceased daughter, daughter of a pre-deceased son of a pre-deceased daughter, daughter of a pre-deceased daughter of a pre-deceased so.”

54. In view of the provisions contained in section 6 when a coparcener is survived by a female heir of Class I or male relative of such female, it was necessary to ascertain the share of the deceased, as such, a legal fiction was created. The Explanation I provided legal fiction of partition as if it had taken place immediately before his death, notwithstanding whether he had the right to claim it or not. However, a separated Hindu could not claim an interest in the coparcenary based on intestacy in the interest left by the deceased.

55. The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener “in her own right” and “in the same manner as the son.” Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.

56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.

57. The concept of retrospective and retroactive statute was stated by this Court in Darshan Singh etc. v. Ram Pal Singh & Anr., (1992 Supp. (1) SCC 191, thus:

“35. Mr Sachar relies on Thakur Gokulchand v. Parvin Kumari, AIR 1952 SC 231, Garikapatti Veeraya v. N. Subbiah Choudhury, AIR 1957 SC 540, Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC 917, Govind Das v. ITO, (1976) 1 SCC
906, Henshall v. Porter, (1923) 2 KBD 193, United Provinces v. Mst. Atiga Begum, AIR 1941 FC 16, in support of his submission that the Amendment Act was not made retrospective by the legislature either expressly or by necessary implication as the Act itself expressly provided that it shall be deemed to have come into force on January 23, 1973; and therefore there would be no justification to giving it retrospective operation. The vested right to contest which was created on the alienation having taken place and which had been litigated in the court, argues Mr Sachar, could not be taken away. In other words, the vested right to contest in appeal was not affected by the Amendment Act. However, to appreciate this argument we have to analyse and distinguish between the two rights involved, namely, the right to contest and the right to appeal against lower court’s decision. Of these two rights, while the right to contest is a customary right, the right to appeal is always a creature of statute. The change of the forum for appeal by enactment may not affect the right of appeal itself. In the instant case we are concerned with the right to contest and not with the right to appeal as such. There is also no dispute as to the propositions of law regarding vested rights being not taken away by an enactment which is ex facie or by implication not retrospective. But merely because an Act envisages a past act or event in the sweep of its operation, it may not necessarily be said to be retrospective. Retrospective, according to Black’s Law Dictionary, means looking backward; contemplating what is past; having reference to a statute or things existing before the Act in question. Retrospective law, according to the same dictionary, means a law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights occurring, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Retroactive statute means a statute which creates a new obligation on transactions or considerations already past or destroys or impairs vested rights.

36. In Halsbury’s Laws of England (4th edn., Vol. 44, at paragraph 921) we find:

“921. Meaning of ‘retrospective’.— It has been said that ‘retrospective’ is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing.”

37. We are inclined to take the view that in the instant case legislature looked back to January 23, 1973 and not beyond to put an end to the custom and merely because on that cut off date some contests were brought to abrupt end would not make the Amendment Act retrospective. In other words, it would not be retrospective merely because a part of the requisites for its action was drawn from a time antecedent to the Amendment Act coming into force. We are also of the view that while providing that “no person shall contest any alienation of immovable property whether ancestral or non-ancestral or any appointment of an heir to such property”, without preserving any right to contest such alienations or appointments as were made after the coming into force of the Principal Act and before the coming into force of the Amendment Act, the intention of the legislature was to cut off even the vested right; and that it was so by implication as well. There is no dispute as to the proposition that retrospective effect is not to be given to an Act unless, the legislature made it so by express words or necessary implication. But in the instant case it appears that this was the intention of the legislature. Similarly courts will construe a provision as conferring power to act retroactively when clear words are used. We find both the intention and language of the Amendment Act clear in these respects.”

58. In G. Sekar v. Geetha & Ors., (2009) 6 SCC 99 with respect to the operation of Amendment Act, 2005, it was observed that the same is prospective in nature and not retrospective thus:

“30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective.”

59. The decision in G. Sekar (supra) concerned with the provisions of section 23 of the Hindu Succession Act prior to its deletion, w.e.f. 9.9.2005. The question involved therein was the effect of the deletion by Amendment Act of 2005. The suit for partition of the residential dwelling house was not maintainable under section 23. In that context, the observations were made by this Court. In Sheela Devi (supra), the question was whether Section 8 of the Act of 1956 would apply or the law applicable prior to the Act of 1956.

60. Section 6(2) provides when the female Hindu shall hold the property to which she becomes entitled under section 6(1), she will be bound to follow rigors of coparcenary ownership, and can dispose of the property by testamentary mode.

61. With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son; even surviving child of pre­deceased daughter or son are given a share in case child has also died then surviving child of such pre­deceased child of a pre­deceased son or pre­deceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a sea­change in substituted section 6. In case of death of coparcener after 9.9.2005, succession is not by survivorship but in accordance with section 6(3)(1). The Explanation to section 6(3) is the same as Explanation I to section 6 as originally enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, grand­daughter, or great­grand­daughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of Amendment Act, 2005. The provisions contained in section 6(4) also make it clear that provisions of section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.

62. The proviso to section 6(1) and section 6(5) saves any partition effected before 20.12.2004. However, Explanation to section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of ‘partition’ in the Explanation.

63. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)(a) and 6(1) (b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

In ref: Effect of enlargement of daughter’s rights

65. Under the proviso to section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to section 6 as it stood before amendment.

66. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.

67. There can be a sole surviving coparcener in a given case the property held by him is treated individual property till a son is born. In case there is a widow or daughter also, it would be treated as joint family property. If the son is adopted, he will become a coparcener. An adoption by a widow of a deceased coparcener related to the date of her husband’s death, subject to saving the alienations made in the intermittent period.

In Ref. Acquisition of Rights in Coparcenary Property

68. It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.

69. The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

70. The decision in Bireswar Mookerji & Ors. v. Shib Chunder Roy (supra), was relied upon to contend that adoption is only of a male and not a female as held in Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., (supra), a male becomes a coparcener by birth or adoption. There is no dispute with the custom, which was prevalent earlier that there could be the adoption of a male child and not that of females. There is no dispute with the proposition that a coparcenary right accrued to males under the prevalent law by birth or adoption. In the same manner, right is accrued by birth to the daughter under the provisions of section 6. The legislature in section 6 used the term that a daughter becomes coparcener by birth. The claim based on birth is distinguishable and is different from modes of succession.

71. It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to section 6(1). When we read the provisions conjointly, when right is given to the daughter of a coparcener in the same manner as a son by birth, it became necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20.12.2004. A daughter can assert the right on and from 9.9.2005, and the proviso saves from invalidation above transactions.

72. It was argued that in the eventuality of the death of a father or other coparcener, the parties would have not only partitioned their assets but also acted in pursuance of such partition. However, partitions have been taken care of by the proviso to section 6(1) and 6(5). Parliament has not intended to upset all such transactions as specified in the proviso to section 6(1).

73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively. There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also. By applying section 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original section 6. She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary.

74. In Prakash v. Phulavati, father died in the year 1988, daughters filed a suit for partition in 1992, same was dismissed in 2007, entitlement was given to the daughters to a share on a notional partition under the proviso to section 6 in the share of the coparcener father. However, the High Court applied the amended provisions of section 6 to the pending proceedings and treated daughters equally with sons. As such, the matter travelled to this Court. It was held that the proviso is not retrospective. The requirement of partition being registered can have no application to statutory notional partition, on the opening of succession as per the unamended proviso to section 6, having regard to the nature of such partition, which is by operation of law. It was opined:

“17. The text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability.

In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. [Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24, paras 22 to 27] In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.

18. The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation.

x x x

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9- 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.
x x x

27.2. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978) 3 SCC 383, Shyama Devi v. Manju Shukla (1994) 6 SCC 342 and Anar Devi v. Parmeshwari Devi (2006) 8 SCC 656 cases this Court interpreted Explanation 1 to Section 6 (prior to the 2005 Amendment) of the Hindu Succession Act. It was held that the deeming provision referring to partition of the property immediately before the death of the coparcener was to be given due and full effect in view of settled principle of interpretation of a provision incorporating a deeming fiction. In Shyama Devi (supra) and Anar Devi (supra) cases, same view was followed.

27.3. In Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar, AIR 2012 Bom. 101, the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment [AIR 214 Bom 151]. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment.”

75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.

76. In Mangammal v. T.B. Raju & Ors. (supra), the Court considered the provisions made in the State of Tamil Nadu, the State Government enacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989, made effective from 25.3.1989, adding section 29­A in the Hindu Succession Act, 1956. Section 29A was held to be valid regarding succession by survivorship. Section 29A provided equal rights to daughters in coparcenary property. The provisions were more or less similar, except section 29A(iv) treated a married daughter differently. The provisions were not applicable to the daughters married before the date of commencement of Amendment Act, 1989. Thus, married daughters were not entitled to equal rights. That too, has been taken care of in section 6, as substituted by Act of 2005, and no discrimination is made against married daughters. In the said case, Mangammal got married in 1981, and Indira got married in or about 1984, i.e., before the 1989 Amendment. Therefore, it was held that because of section 29­A(iv) of the Amendment Act, the appellant could not institute a suit for partition and separate possession as they were not coparceners. The decisions in Prakash v. Phulavati and Danamma were referred, and it was opined that Prakash v. Phulavati would still hold the value of precedent for right of a daughter in ancestral property and only “living daughters of living coparceners” as on 9.9.2005 would be entitled to claim a share in the coparcenary property. In Mangammal, the Court opined thus:

“15. Moreover, under Section 29-A of the Act, the legislature has used the word “the daughter of a coparcener.” Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the amendment of 1989. The similar issue came up for the consideration before this Court in Prakash v. Phulavati, (2016) 2 SCC 36, wherein this Court while dealing with the identical matter held at para 23 as under (SCC p. 49)

“23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9- 2005 irrespective of when such daughters are born.”
(emphasis supplied)

16. It is pertinent to note here that recently, this Court in Danamma v. Amar, (2018) 3 SCC 343, dealt, inter alia, with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who was born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash, (2016) 2 SCC 36, would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.

17. Hence, without touching any other aspect in the present case, we are of the view that the appellants were not the coparceners in the Hindu joint family property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted.”

It is apparent that the question of living daughter of a living coparcener was not involved in the matter, once this Court held that the married daughters were not entitled to claim partition and separate possession as marriage had taken place prior to the enforcement of the 1989 amendment, as observed in para 17 quoted above. However, this Court opined that the decision in Prakash v. Phulavati, laying down that only living daughters of living coparceners would be entitled to claim a share in the ancestral property under section 6 of the Act of 1956. The opinion expressed cannot be accepted for the reasons mentioned above. Moreover, it was not necessary to go into the aforesaid question.

77. In Danamma, a Division Bench of this Court dealt with the interpretation of amended provisions of section 6. The decision in Anar Devi v. Parmeshwari Devi (supra) was relied upon. It was observed that the controversy concerning the interpretation of section 6 now stands settled with authoritative pronouncement in Prakash v. Phulavati which affirmed the view taken by the High Court as well as a Full Bench in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, AIR 2014 Bom. 151. In Danamma, the Court further opined:

“23. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-sections (1)(a) and (b).

25. Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

26. In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788, held that the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

27. On facts, there is no dispute that the property which was the subject-matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th share each in the said property. The plaintiff (Respondent 1) is son of Arun Kumar (Defendant 1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between Defendant 1 Arun Kumar, his wife Defendant 2, his two daughters Defendants 3 and 4 and son/plaintiff (Respondent 1). In this manner, Respondent 1-plaintiff would be entitled to 1/25th share in the property.”

78. In Danamma, it is pertinent to mention that Gurulingappa, propositus of a Hindu joint family and the father of living daughter coparcener died in 2001, before the Amendment Act, 2005 came into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulavati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter.

In Ref. Partition and Effect of Statutory Fiction

79. The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute.

A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

80. We deem it appropriate to refer to the decision in Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46 laying down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in the property, a coparcener becomes the owner of that share, and, as such, he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed:

“22. For the purpose of assigning one’s interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the present case.

23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.”

81. It is settled proposition of law that without partition, only undivided share can be sold but not specific property, nor joint possession can be disrupted by such alienation. Whether the consent of other coparcener is required for sale or not, depends upon by which School of Mitakshara law, parties are governed, to say, in Benares School, there is a prohibition on the sale of property without the consent of other coparceners. The Court in the abovesaid decision made general observation but was not concerned with the aspect when the partition was completed, the effect of intervening events and effect of statutory provisions as to partition, as such, it cannot be said to be an authority as to provisions of section 6 as substituted and as to enlargement of the right by operation of law achieved thereunder. Shares of coparceners can undergo a change in coparcenary by birth and death unless and until the final division is made. The body of coparcenary is increased by the operation of law as daughters have been declared as a coparcener, full effect is required to be given to the same. The above decision cannot be said to be an authority for the question involved in the present matters.

82. In Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR 2011 SC 1542, the question of devolution of interest in coparcenary property arose on the death of male Hindu leaving behind wife, son and three daughters, and determination of their shares. It was observed that until the disruption of joint family status occurs, the definite share cannot be claimed with certainty, and share cannot be predicated in joint and undivided property. The question of disruption of joint family status by a definite and unequivocal declaration of intention to separate himself from the family was also considered. The question in the present case is when the partition has not taken place whether the statutory fiction contained in the proviso to section 6 with respect to the determination of shares of a deceased coparcener and its devolution thereunder would disrupt coparcenary. The answer is in the negative. In Man Singh (supra), it was observed that the wife has a right to claim an equal share in the husband’s property as that of a son, and she can enjoy the share separately even from her husband thus:

“12. … Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with certainty the exact share in that property. In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan & Ors., (1866) 11 MIA 75, Lord Westbury speaking for the Judicial Committee (Privy Council) observed, ‘According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share.’

15. In Principles of Hindu Law by Mulla, Vol. I (17th Edition) as regards the right of wife, it is stated that a wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband (Article 315 at Page 506).”

83. In Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v. Prabhulal, AIR 1917 PC 39 and Ramalinga v. Narayana, AIR 1922 PC 201, it was laid that the institution of a suit for partition by a member of a joint family is a clear intimation of his intention to separate and the decisions indicate that there was consequential severance of joint status from the date when the suit was filed though there was an assertion of his right to separate by filing of the suit whether the consequential judgment is passed or not. However, we add a rider that if subsequently, the law confers a right, or such other event takes place, its effect has to be worked out even after passing of the preliminary decree.

84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and Palani Ammal v. Muthuvenkatachala, AIR 1925 PC 49, it was observed that if the suit is withdrawn before trial and passing of the decree, the plaintiff ultimately has not chosen to go for separation. It was laid down that there was no severance of the joint status of the family by filing of the suit.

85. In Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat 278, it was held that the filing of a suit is a shred of strong evidence, but not conclusive evidence of an intention to separate. However, in our opinion, the intention to separate need not be confused with the change of rights during the pendency of the suit, which has to be given full effect, to do complete justice.

86. In Chokalingam v. Muthukaruppan, AIR 1938 Mad 849, it was laid down that even a decree passed by consent does not affect a severance; it had no validity if its terms were not executed and the members continue to live together having abandoned their decision to separate.

87. In Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji & Ors., AIR 1927 PC 224, a distinction was made between severance of the joint status, which is a matter of individual decision and the division of the property where the allotment of shares may be effected by private arrangements, by arbitrators or as a last resort, by the Court. It was observed:

“In the first place, there is separation, which means the severance of the status of jointness. That is matter of individual volition; and it must be shown that an intention to become divided has been clearly and unequivocally expressed, it may be by explicit declaration or by conduct.

Secondly, there is the partition or division of the joint estate, comprising the allotment of shares, which may be effected by different methods.”

88. In Palani Ammal (supra), Ramabadra v. Gopalaswami, AIR 1931 Mad 404 and Gangabai v. Punau Rajwa, AIR 1956 Nag 261, it was laid down that joint family does not get disrupted merely by ascertainment of the shares of the coparcener. In order to constitute a partition, the shares should be defined with the intention of an immediate separation.

89. In Poornandachi v. Gopalasami, AIR 1936 PC 281, only one of the members was given the share by way of instrument of partition. It was also provided that the rest of the property was to remain joint. It was held that there was no partition between the other members. In I.T. Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035, it was held that if a preliminary decree for partition is passed, it will not amount to a partition unless an actual physical partition is carried out pursuant to a final decree.

90. In S. Sai Reddy v. S. Narayana Reddy & Ors. (1991) 3 SCC 647, a suit for partition, was filed. A preliminary decree determining the shares was passed. The final decree was yet to be passed. It was observed that unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. A preliminary decree does not bring about the final partition. For, pending the final decree, the shares themselves are liable to be varied on account of the intervening events, and the preliminary decree does not bring about any irreversible situation. The concept of partition that the legislature had in mind could not be equated with a mere severance of the status of the joint family, which could be effected by an expression of a mere desire by a family member to do so. The benefit of the provision of section 29A could not have been denied to women whose daughters were entitled to seek shares equally with sons in the family. In S. Sai Reddy (supra), it was held:

“7. The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.

8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property.”
(emphasis supplied)

91. In Prema v. Nanje Gowda, AIR 2011 SC 2077, insertion of section 6A by the amendment made by the State of Karnataka in the Hindu Succession Act, 1956, was considered. Equal rights were given to the daughter in coparcenary property in a suit for partition. A preliminary decree was passed. Amendment in the Act was made during the final decree proceedings. It was held that the discrimination practiced against the unmarried daughter was removed. Unmarried daughters had equal rights in the coparcenary property. The amendment’s effect was that the unmarried daughter could claim an equal share in the property in terms of section 6A inserted in Karnataka. In Prema (supra), the Court opined:

“11. … in R. Gurubasaviah v. Rumale Karibasappa and others, AIR 1955 Mysore 6, Parshuram Rajaram Tiwari v. Hirabai Rajaram Tiwari, AIR 1957 Bombay 59 and Jadunath Roy and others v. Parameswar Mullick and others, AIR 1940 PC 11, and held that if after passing of preliminary decree in a partition suit but before passing of final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment, the Court is duty-bound to decide the matter and pass final decree keeping in view of the changed scenario.”

“14. We may add that by virtue of the preliminary decree passed by the trial court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order…”
(emphasis supplied)

It was held that if after passing of a preliminary decree in a partition suit but before passing of the final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment; the Court is duty­bound to decide the matter and pass final decree keeping in view the changed scenario. In Prema (supra), the Court further opined:

“20. In our view, neither of the aforesaid three judgments can be read as laying down a proposition of law that in a partition suit, preliminary decree cannot be varied in the final decree proceedings despite amendment of the law governing the parties by which the discrimination practiced against unmarried daughter was removed and the statute was brought in conformity with Articles 14 and 15 of the Constitution. We are further of the view that the ratio of Phoolchand v. Gopal Lal, (AIR 1967 SC 1470) (supra) and S. Sai Reddy v. S. Narayana Reddy, (1991 AIR SCW 488) (supra) has direct bearing on this case and the trial court and the High Court committed serious error by dismissing the application filed by the appellant for grant of equal share in the suit property in terms of Section 6A of the Karnataka Act No.23 of 1994.”

It was laid down that by the change of law, the share of daughter can be enlarged even after passing a preliminary decree, the effect can be given to in final decree proceedings.

92. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (supra), this Court considered the amendment made in section 6 of the Hindu Succession Act in 2005 and held that the right of a daughter in coparcenary property is not lost bypassing of a preliminary decree for partition before stipulated date i.e., 20th December, 2004. A partition suit does not stand disposed of bypassing a preliminary decree. Relying inter alia, on S. Sai Reddy (supra), it was held that the preliminary decree can be amended in order to fully recognise the rights of a daughter:

“16. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the Court. In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instrument of partition or by a decree of the Court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999, which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner.

17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a three-Judge Bench decision of this Court in Phoolchand & Anr. v. Gopal Lal, AIR 1967 SC 1470, wherein this Court stated as follows:

“We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. … So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; … there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. … for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree…..”

19. The above legal position is wholly and squarely applicable to the present case. It surprises us that the High Court was not apprised of the decisions of this Court in Phoolchand, (AIR 1967 SC 1470) and S. Sai Reddy, (1991 AIR SCW 488). High Court considered the matter as follows:

“ x x x.”

20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of CPC. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the Government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The Court would thereafter proceed for preparation of final decree. In Phoolchand, this Court has stated the legal position that CPC creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The Court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.

21. Section 97 of C.P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the Court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.

22. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.”
(emphasis supplied)

The effect of the legislative provision concerning partition was considered, and it was held that a preliminary decree merely declares the shares and on which law confers equal rights upon the daughter that is required to be recognised.

93. The concept of partition and its effect was considered by this Court in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Ors., (2009) 9 SCC 689 thus:

“The issue

5. “Partition” is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.

6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. “Separation of share” is a species of “partition”. When all co- owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.

***

18. The following principles emerge from the above discussion regarding partition suits:

18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.

20. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the Court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.”
(emphasis supplied)

94. In Laxmi Narayan Guin & Ors. v. Niranjan Modak, (1985) 1 SCC 270, it was laid down that change in law during the pendency of the appeal has to be taken into consideration thus:

“9. That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi, AIR 1963 SC 553 which was followed by this Court in Mula v. Godhu, (1969) 2 SCC 653. We may point out that in Dayawati v. Inderjit, AIR 1966 SC 1423 this Court observed:

“If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance.”

Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh, (1974) 2 SCC 363 where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal, ILR (1902) 26 Mad 91 (FB) by Bhashyam Ayyangar, J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur, (1974) 2 SCC 363 this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 in which the Federal Court had laid down that once a decree passed by a court had been appealed against the matter became sub judice again and thereafter the appellate court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the Court below retained jurisdiction.”

95. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. & Ors., AIR 2000 SC 2957, with respect to change in law during the pendency of proceedings, it was observed:

“20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406). If, while a suit is pending, a law like the 1993 Act that the Civil Court shall not decide the suit, is passed, the Civil Court is bound to take judicial notice of the statute and hold that the suit — even after its remand — cannot be disposed of by it.”

96. In Gurupad Khandappa Magdum (supra), the question of Explanation I to section 6 of the Hindu Succession Act, 1956 came up for consideration with respect to the determination of widow’s interest in the coparcenary property. Court held that a widow’s share in the coparcenary property must be ascertained by adding the share to which she is entitled at a notional partition during her husband’s lifetime and the share she would have obtained in her husband’s interest upon his death. The first step is to ascertain the share of the deceased in the coparcenary property that would be worked out ultimately, and that shall be deemed to be the share in the property that should have been allotted to the deceased. What is therefore required to be assumed is that a partition had, in fact, taken place between the deceased and his coparceners immediately before his death. The assumption must permeate the entire process of ascertainment of the ultimate share of the heirs. All the consequences must be taken to a logical end. It was opined:

“13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant’s share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.”

The only question involved in the aforesaid matter was with respect to the Explanation of section 6 and the determination of the widow’s share. In that case, the question was not of fluctuation in the coparcenary body by a legal provision or otherwise. Everything remained static. No doubt about it, the share of the deceased has to be worked out as per the statutory fiction of partition created. However, in case of change of body of the coparceners by a legal provision or otherwise, unless and until the actual partition is finally worked out, rights have to be recognised as they exist at the time of the final decree. It is only the share of the deceased coparcener, and his heirs are ascertained under the Explanation to section 6 and not that of other coparceners, which keep on changing with birth and death.

97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors (supra), the decision in Gurupad (supra) was considered, and it was held that when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative claiming through such female relative, his undivided interest is not devolved by survivorship but upon his heir by intestate succession thus:

“8. According to the learned author, at page 253, the undivided interest “of the deceased coparcener for the purpose of giving effect to the rule laid down in the proviso, as already pointed out, is to be ascertained on the footing of a notional partition as of the date of his death. The determination of that share must depend on the number of persons who would have been entitled to a share in the coparcenary property if a partition had in fact taken place immediately before his death and such person would have to be ascertained according to the law of joint family and partition. The rules of Hindu law on the subject in force at the time of the death of the coparcener must, therefore, govern the question of ascertainment of the persons who would have been entitled to a share on the notional partition”.

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

In Anar Devi (supra), the question of enlargement of right by a legal provision or otherwise change in the coparcener’s share was not involved. The decision cannot help the cause set up of partition created by statutory fiction. Statutory fiction is with respect to the extent of the share of deceased coparcener in exigency provided in the proviso to section 6. Co­parcenary or HUF, as the case may be, does not come to an end by statutory fiction. Disruption of coparcenary by statutory fiction takes place, is not the proposition laid down in the aforesaid decision.

98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors., AIR 1968 SC 1018, this Court considered the doctrine of Hindu law, separation in status by a definite, unequivocal and unilateral declaration thus:

“(4) It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. There does not need to be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu Law. The relevant portion of the commentary of Vijnaneswara states as follows:

“x x x x x “

[And thus though the mother is having her menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather’s wealth does take place]”

Saraswathi Vilasa, placitum 28 states:

[From this it is known that without any speech (or Explanation) even by means of a determination (or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention without speech.]

Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to the following effect:

[Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener)].

Vyavahara Mayukha of Nilakantabhatta also states:

[Even in the absence of any common (joint family) property, severance does indeed result by the mere declaration ‘I am separate from thee’ because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition).]” (Ch. IV, S. III-I).

Emphasis is laid on the “budhivisesha” (particular state or condition of the mind) as the decisive factor in producing a severance in status and the declaration is stated to be merely “abhivyanjika” or manifestation which might vary according to circumstances. In Suraj Narain v. Iqbal Narain, (1913) ILR 35 All 80 the Judicial Committee made the following categorical statement of the legal position:

“A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed … Suraj Narain alleged that he separated a few months later; there is, however, no writing in support of his allegation, nothing to show that at that time he gave expression to an unambiguous intention on his part to cut himself off from the joint undivided family.”

In a later case — Girja Bai v. Sadashiv Dhundiraj, ILR 42 Cal 1031, the Judicial Committee examined the relevant texts of Hindu Law and referred to the well-marked distinction that exists in Hindu law between a severance in status so far as the separating member is concerned and a de facto division into specific shares of the property held until then jointly, and laid down the law as follows:

“One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that, by the intervention of the Court. Once the decision has been unequivocally expressed and clearly intimated to his co- sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it nor can the Court examine his conscience to find out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others.”

In Syed Kasam v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave, in delivering the judgment of the Judicial Committee, observed:

“It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place; and the commencement of a suit for partition has been held to be sufficient to effect a severance in interest even before decree.”
(emphasis supplied)

99. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

100. As to the effect of legal fiction, reliance was placed on Commissioner of Income Tax, Delhi v. S Teja Singh, AIR 1959 SC 352, in which it was laid down that in construing the scope of legal fiction, it would be proper and even necessary to assume all those facts on which alone the fiction can operate. There is no dispute with the aforesaid proposition, but the purpose of fiction is limited so as to work out the extent of the share of the deceased at the time of his death, and not to affect the actual partition in case it has not been done by metes and bounds.

101. When the proviso to unamended section 6 of the Act of 1956 came into operation and the share of the deceased coparcener was required to be ascertained, a deemed partition was assumed in the lifetime of the deceased immediately before his death. Such a concept of notional partition was employed so as to give effect to Explanation to section 6. The fiction of notional partition was meant for an aforesaid specific purpose. It was not to bring about the real partition. Neither did it affect the severance of interest nor demarcated the interest of surviving coparceners or of the other family members, if any, entitled to a share in the event of partition but could not have claimed it. The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it. Legal fiction is only for a purpose it serves, and it cannot be extended beyond was held in State of Travancore­Cochin & Ors. v. Shanmugha Vilas Cashew Nut Factory & Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661; and Controller of Estate Duty v. Smt. S. Harish Chandra, (1987) 167 ITR 230. A legal fiction created in law cannot be stretched beyond the purpose for which it has been created, was held in Mancheri Puthusseri Ahmed (supra) thus:

“8. xxx In the first place the section creates a legal fiction. Therefore, the express words of the section have to be given their full meaning and play in order to find out whether the legal fiction contemplated by this express provision of the statute has arisen or not in the facts of the case. Rule of construction of provisions creating legal fictions is well settled. In interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. It cannot also be extended by importing another fiction. x x x”

102. It is apparent that the right of a widow to obtain an equal share in the event of partition with the son was not deprived under old section 6. Unamended Section 6 provided that the interest of a coparcener could be disposed of by testamentary or intestate succession on happening of exigency under the proviso. Under the old law before 1956 devise by a coparcener of Hindu Mitakshara family property was wholly invalid. Section 30 of the Act of 1956 provided competence for a male Hindu in Mitakshara coparcenary to dispose of his interest in the coparcenary property by a testament.

103. In Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055, it was held that the shares of all coparceners should be ascertained in order to work out the share of the deceased coparcener, partition to be assumed and given effect to when the question of allotment comes, but this Court did not lay down in the said decision that the deeming fiction and notional partition brought an end to the joint family or coparcenary.

104. In case coparcenary is continued, and later on between the surviving coparceners partition takes place, it would be necessary to find out the extent of the share of the deceased coparcener. That has to be worked out with reference to the property which was available at the time of death of deceased coparcener whose share devolved as per the proviso and Explanation I to section 6 as in case of intestate succession.

105. In Hari Chand Roach v. Hem Chand & Ors., (2010) 14 SCC 294, a widow inherited the estate of her husband and had an undivided interest in the property. The subsequent family arrangement was entered into whereby she exchanged her share for another property. This Court held that though her share was definite, the interest continued undivided, and there was a further family arrangement that will have the effect of giving her disposition over the property in question, which was given to her in the subsequent family arrangement. It is apparent that under an undivided interest, as provided under section 6, the shares are definite, but the interest in the property can continue undivided.

106. In the instant case, the question is different. What has been recognised as partition by the legislation under section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of proviso to section 6 as discussed in Prakash v. Phulavati (supra) and Danamma (supra). If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.
In Ref. Section 6(5)

107. The Explanation to Section 6(5) provides that for the purposes of Section 6, ‘partition’ means effected by any registered partition deed or effected by a decree of a court. It is pertinent to mention that Explanation did not find place in the original Amendment Bill moved before the Rajya Sabha on 20.12.2004. The same was added subsequently. In the initial Note, it was mentioned that partition should be properly defined, leaving any arbitrary interpretation, and for all practical purposes, the partition should be evinced by a registered public document or have been affected by a decree of a court. In a case partition is oral, it should be supported by documentary evidence. Initially, it was proposed to recognise the oral partition also, in case the same is supported by contemporaneous documentary evidence. The intention was to avoid any sham or bogus transactions in order to defeat the rights of coparcener conferred upon daughters by the Amendment Act, 2005. In this regard, Note for Cabinet issued by the Legislative Department, Ministry of Law & Justice, Government of India, suggested as under:

“As regards sub section 5 of the proposed new section 6, the committee vide paragraph has recommended that the term “partition” should be properly defined, leaving any arbitrary interpretation. Partition for all practical purposes should be registered have been effected by a decree of the Court. In case where oral partition is recognised, be backed by proper documentary evidence. It is proposed to accept this recommendation and make suitable changes in the Bill.”

108. Learned Solicitor General argued that the requirement of a registered partition deed may be interpreted as the only directory and not mandatory in nature considering its purposes. However, any coparcener relying upon any such family arrangements or oral partition so arrived must prove the same by leading proper documentary evidence.

109. The Cabinet note made on 29.7.2005 with respect to ‘partition’ is quoted hereunder:

“5.2 In this connection it may be noted that the amendments made in the Hindu Succession Act, 1956 by the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu and the Kerala Joint Hindu Family System (Abolition) Act, 1975 will be superseded by any subsequent Central enactment containing provisions to the contrary as the Central legislation will prevail over the State enactments by virtue of operation of doctrine of repugnancy enunciated in article 254 of the Constitution. Innumerable settled transactions and partitions which have taken place hitherto will also become disturbed by the proposed course of action. Further, there could be heartburning from the majority of the Hindu population. In the circumstances, it is proposed that we may remove the distinction between married and unmarried daughters and at the same time clearly lay down that alienation or disposition of property made at any time before the 20th day of December, 2004, that is, the date on which the Hindu Succession (Amendment) Bill, 2004 was introduced in the Rajya Sabha will not be affected or invalidated. Consequential changes are also suggested in sub-section (5) of proposed section 6.”

110. Section 6(5) as proposed in the original Bill of 2004 read thus:

“(5) Nothing contained in this section shall apply to a partition, which has been effected before the commencement of the Hindu Succession (Amendment) Act, 2004.”

111. Shri R. Venkataramani, Amicus Curiae, argued that proviso to Section 6 is plain and clear. All dispositions, alienations, testamentary depositions, including partition effected prior to 20.12.2004, shall not be reopened. There may be a partition of coparcenary property, and they would have also acted in pursuance of such partition. There could be any number of instances where parties would have entered into family settlements or division of properties on the basis of respective shares or entitlement to succeed on a partition. In many of those cases, a simple mutation in revenue entries would have been considered as sufficient for severance of status. The Parliament did not intend to upset all such cases, complete transactions, and open them for a new order of succession. The partition effected merely to avoid any obligation under any law, for example, the law relating to taxation or land ceiling legislation, are not examples relevant for understanding the objects and scheme of Section 6. Therefore, the proviso to sub­Section (1) of Section 6 and sub­Section 5 of Section 6 is required to be given such meaning and extent to not dilute the relevance in the forward and future­looking scheme of Section 6. The past cases shall not be reopened for this purpose. He has relied upon Shashika Bai (supra).

112. Shri V.V.S. Rao, learned senior counsel appearing as Amicus Curiae, pointed out that under Section 6(5), as proposed in the Bill mentioned that nothing contained in the amended Section 6 should apply to a partition, which has been effected before the commencement of the Amendment Act. Following deliberation was made by the Committee:

“Deliberation by the Committee

35. During its deliberation on the Bill, the Committee pondered on the concept of ‘partition’ as referred to in the aforesaid sub section. When the Secretary (Legislative Department) was asked as to the validity of partition effected through oral means, he replied that it depends upon the facts of the particular case. The Secretary stated as below:

“Sub clause (5) (of the Bill) says that nothing contained in this section shall apply to a partition, which has been effected before the commencement of the Act. So, people may not have a chance of effecting registered partition or going to the court and getting it registered.”

36. Further, the Legal Secretary stated as below:

“…. under the present legal position, it is not necessary that a partition should be registered. There is no legal requirement. There can be oral partition also.”

General observation by the Committee

37. The Committee recommends that the term ‘partition’ should be properly defined leaving no scope for any arbitrary interpretation. Partition, for all practical purposes should be registered or should have been effected by a decree of the court. In cases, where oral partition is recognised, it should be backed by proper evidentiary support. Subject to above, clause 2 of the Bill is adopted.”

113. Shri V.V.S. Rao argued that the status of coparcener conferred on daughters cannot affect the partition made orally, and the explanation at the end of Section 6 was added after receiving report of the Parliamentary Committee. The partition may be effected orally and later on memorandum can be created for memory purposes. Such a document containing memorandum of partition is not required to be registered. The parties may settle their rights and enter into subsequent transactions based upon such a partition. It is not to unsettle the completed property transactions that had already taken place. The explanation should not be understood as invalidating all the documents or oral partition in respect of the coparcenary property. In case genuineness of such document is questioned, it has to be proved to the satisfaction of the Court. The saving of transactions would safeguard the genuine past transaction and prevent unrest in the family system. Similar proposal was made by the Law Commission of India.

114. The learned counsel, Shri Sridhar Potaraju, argued that ignoring statutory fiction of partition under proviso to section 6, which provision had been incorporated in 1956 and continued till 2005, is not warranted.

115. Ms. Anagha S. Desai, learned counsel, argued that in the absence of partition deed also, partition could be effected by metes and bounds, and if it is proved properly, the daughters will not open these concluded transactions of coparcenary property.

116. The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5).

117. How family settlement is effected was considered in Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119, thus:

“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292, 295, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus:

“Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.””
(emphasis supplied)

It is settled law that family arrangements can be entered into to keep harmony in the family.

118. Reliance has been placed on Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effect of adoption by a widow and its effect on partition and other alienation made before adoption was considered. , the following observations were made:

“11. Two crucial questions then arise. One-third share out of what? Should the gift by Mahadev of what was under the then circumstances his exclusive property be ignored in working out the one-third share? Two principles compete in this jurisdiction and judges have struck a fair balance between the two, animated by a sense of realism, impelled by desire to do equity and to avoid unsettling vested rights and concluded transactions, lest a legal fiction should by invading actual facts of life become an instrumentality of instability. Law and order are jurisprudential twins and this perspective has inarticulately informed judicial pronouncements in this branch of Hindu law.

18. We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear. The propositions that emerge are that:

(i) A widow’s adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last;

(ii) Nevertheless, the factum of partition is not wiped out by the later adoption;

(iii) Any disposition testamentary or inter vivos lawfully made antecedent to the adoption is immune to challenge by the adopted son;

(iv) Lawful alienation in this context means not necessarily for a family necessity but alienation made competently in accordance with law;

(v) A widow’s power of alienation is limited and if — and only if— the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Benares school;

(vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.”
(emphasis supplied)

119. In Chinthamani Ammal v. Nandgopal Gounder, (2007) 4 SCC 163, it was observed that a plea of partition was required to be substantiated as under law, there is a presumption as to jointness. Even separate possession by co­sharers may not, by itself, lead to a presumption of partition.

120. In Rukhmabai v. Laxminarayan, AIR 1960 SC 335 and Mudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgowda Sankh (dead) by his LRs. & Anr., AIR 1969 SC 1076, it was observed that prima facie a document expressing the intention to divide brings about a division in status, however, it is open to prove that the document was a sham or a nominal one and was not intended to be acted upon and executed for some ulterior purpose. The relations with the estate is the determining factor in the statement made in the document. The statutory requirement of substituted Section 6(5) is stricter to rule out unjust deprivation to the daughter of the coparcener’s right.

121. In Kalwa Devdattam v. Union of India, AIR 1964 SC 880, it was laid down that when a purported petition is proved to be a sham, the effect would be that the family is considered joint.

122. Earlier, an oral partition was permissible, and at the same time, the burden of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places due to service or otherwise does not show separation. Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, as observed in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC 1728.

123. There is a general presumption that every Hindu family is presumed to be joint unless the contrary is proved. It is open even if one coparcener has separated, to the non­separating members to remain joint and to enjoy as members of a joint family. No express agreement is required to remain joint. It may be inferred from how their family business was carried on after one coparcener was separated from them. Whether there was a separation of one coparcener from all other members of a joint family by a decree of partition, the decree alone should be looked at to determine the question was laid down in Palani Ammal (supra) and Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124. In Palani Ammal (supra), it was held:

“…… It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved….”

124. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation inter se family of the two brothers. The family of both the brothers may continue to be joint.

125. The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also.

126. The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.

127. A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

128. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

129. Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

130. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.

In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits.

…………………………….J.
(Arun Mishra)

…………………………….J.
(S. Abdul Nazeer)

…………………………….J.
(M.R. Shah)

New Delhi:
August 11, 2020.

The post Vineeta Sharma Vs. Rakesh Sharma & Ors. appeared first on B&B Associates LLP.

1. The Petitioner No 1, Shri Stevie M. Marak is a Member of the Garo Hills Autonomous District Council (GHADC) from Boldamgri Constituency, the Petitioner No 2, Shri Boston Marak is also a Member of the GHADC from Nogorpara Constituency, while the Petitioner No 3, Shri Rupert N. Sangma is also another Member of the GHADC from Tura Constituency.

2. The above named Petitioners were duly elected to the GHADC in the General Election to the Garo Hills Autonomous District Council held in October 2015, the same being notified in ‘The Gazette of Meghalaya’ (Extraordinary) on the 16th October 2015.

3. The Executive Committee of the GHADC is led by Shri Dipul R. Marak the Member from Rochonpara Constituency who is a member of the Nationalist People’s Party.

4. During the sitting of the 14th Session of the Garo Hills Autonomous District Council, some members expressed want of confidence in the Executive Committee and accordingly, 10(ten) Members of the District Council(MDCs) including the Petitioners No 1 and 2 herein vide letter dated 25.11.2019 addressed to the Secretary(Legislative) Garo Hills Autonomous District Council(GHADC), the Respondent No 2 herein, has brought in a motion of “ No Confidence” in the present Executive Committee led by Shri Dipul R. Marak on the grounds stated therein. The said letter was annexed as Annexure 3 to this Writ Petition.

5. The Chairman of the Council found the said notice of motion of “No Confidence” dated 25-11-2019 in order and the same was read out during the said session on 25-11-2019 for leave of at least 25% of the Members present. Leave was duly granted by more than 25% of the members present.

6. The Secretary, Garo Hills Autonomous District Council vide letter under Memo No.GDC-L/2/Agenda/2015/259-264 dated 26.11.2019 brought out the revised agenda for 27-11-2019 which now reads as follows:

“1. Voting of Demand for Grants.

2. Election of Deputy Chairman of the GHADC, Tura

3. Discussion on Motion of Non-Confidence and Voting.”

7. Accordingly, on 27-11-2019, when the Session was in progress, the agendas for the day was taken up and with regard to the agenda No 2, election of the Deputy Chairman of the GHADC, two names were nominated as candidates for the said post, namely, Shri Augustine R. Marak the candidate of the ruling party/alliance and Shri Mettringson Momin, the candidate of the Opposition side.

8. In the election of the Deputy Chairman of the Council, Shri Mettringson Momin secured 15 votes against the 13 votes secured by Shri Augustine R.Marak, one vote being invalid. Shri Momin was accordingly declared elected as the Deputy Chairman of the GHADC.

9. Before the discussion on agenda No 3, “Discussion on non- Confidence and voting” could be taken up; the Chairman of the GHADC adjourned the Session of the House ‘sine die’ without taking up Agenda No 3.

10. It is the case of the Petitioners that the Chairman of the District Council acting in a highly illegal and arbitrary manner, instead of taking up agenda No 3 adjourned the session of the House sine die without initiating any discussion and voting on the same and as such, this act was done with a mala fide intention to allow the ruling alliance to remain in power even without enjoying the confidence of the House.

11. It is also the case of the Petitioners that since the ruling alliance has lost the election to the post of Deputy Chairman, when its candidate Shri Augustine R. Marak conceded defeat to the candidate of the Opposition group, Shri Mettringson Momin, this is a clear indication that the Executive Committee does not enjoy the confidence of the House and if the No- Confidence Motion was taken up and voted upon, there is every likelihood that the No-Confidence Motion would have been adopted and the Executive Committee headed by the present Chief Executive Member(CEM) would have been removed.

12. The Petitioners have also alleged that the action of the Chairman in adjourning the House sine die without discussing the motion of Non-confidence in the House within twenty four hours from the time at which leave was asked for, is a contravention of Rule 71(2) of the Assam and Meghalaya Autonomous District ( Constitution of District Council) Rules 1951(amended) which stipulates that the motion of no-confidence shall be taken up on such day, not being more than two days and not less than twenty-four hours from the time at which leave is asked for.

13. Till date the motion of non-confidence has not been taken up which clearly indicates that the same is politically motivated to enable the Chairman to facilitate the illegal continuance of the Executive Committee which is against the democratic principles.

14. The Petitioners have further averred that the illegal act of the Chairman in adjourning the session of the District Council sine die without discussing the motion of non-confidence in the House within twenty-four hours from the time at which leave is asked for is highly illegal, arbitrary and malafide which is liable to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of the India.

15. The prayer of the Petitioners is that this Court may be pleased to direct the Respondents to convene the session of the House forthwith to take up the motion of non-confidence for discussion and voting in terms of Agenda No 3 as notified vide GDC-L/2/Agenda/2015/259-264 dated 26-11- 2019.

16. The Respondent No 1, the Garo Hills Autonomous District Council, Tura represented by the Secretary, Executive Committee, GHADC has submitted through its learned Counsel, Shri S. Dey that no response is required from this Respondent.

17. The Respondent No 2, The Secretary (Legislative), Garo Hills Autonomous District Council, Tura has however filed a preliminary objection –cum- Affidavit mainly on the maintainability of this writ.

18. Similarly, the Respondent No 3, the Chairman of the GHADC, has filed a preliminary affidavit-in-opposition also on the ground of maintainability of this writ petition.

19. However, in course of hearing of this instant writ petition, all the parties herein have agreed that this matter can be finally heard and disposed of and accordingly, this Court has heard the argument advanced by the learned Counsels of the respective parties.

20. The main thrust of the argument advanced by the Petitioners is that the Chairman having acted illegally and arbitrarily in adjourning the session of the House sine die abruptly, this Court may be pleased to direct the Respondents, particularly the Chairman of the GHADC to convene the Session for taking up the agenda No 3 and for initiating the discussion of the motion of Non- confidence in the present Executive Committee.

21. Dr. N. Mozika, the Learned Senior Counsel for the Petitioners along with Mr. P. Nongbri, Learned Counsel has submitted that the Chairman has adjourned the sitting of the House sine die and as such, Rule 47 (2) of the Assam and Meghalaya Autonomous District ( Constitution of District Council) Rules 1951(amended)[ hereinafter referred to as the ‘Rules’], which speaks of termination of a session, in which case any business left over shall lapse unless it is included in the list of business of any day during the next session, is not attracted in this particular case.

22. Dr. Mozika has further submitted that an interpretation of Rule 47(2) mentioned above would mean that “Adjournment sine die” is the termination of a sitting, while “Prorogation” is the termination of a session as contemplated in Rule 47 (2) and “Dissolved” is the dissolution of the House for the conduct of Election.

23. Dr. Mozika has argued that the main prayer of the Petitioner is for this Court to direct the Respondent/ Chairman to take up the motion on Non-Confidence and in this regard, this Court is well within its power to issue such a direction in as much as the action of the Respondent/Chairman is clearly illegal and arbitrary and unconstitutional and therefore this is not a case of mere irregularity which will prevent this Court to interfere in such proceedings , but a case where the writ jurisdiction is squarely applicable.

24. Pressing the need for a floor test vis-a vis the No-confidence motion tabled by the Opposition alliance, Dr. Mozika further argued that in similar circumstances to ensure that the democratic fabric of this Country is not the subject of attack or brought to disrepute, the Courts, more particularly the Apex Court has shown the way to the extent that a floor test was directed to be conducted to enable a particular party or alliance to prove its majority on the floor of the house.

25. Citing the case of “Shiv Sena and Others -Vrs- Union of India and Others” in which the Supreme Court, vide Order dated 26-11-2019 passed in Writ Petition (Civil) No 1393 of 2019, has inter-alia, at paragraph

27 of the same ordered for a floor test to be held on 27-11-2019 as regard the trail of strength in the Maharashtra Legislative Assembly is concerned, Dr. Mozika has reiterated that the Respondent 3/Chairman of the GHADC may be directed to re-convene the sitting of the House and that the Agenda-3 relating to the motion of Non-confidence may be taken up as per procedure of the House.

26. Elaborating further on the contention of the Petitioners that the action of the Respondent No 3/Chairman of the GHADC in evading the discussion and voting on the non-confidence motion, Dr. Mozika has referred to Rule 71 of the ‘Rules’ which reads as follows:

“71. (1) A motion expressing want of confidence in the Executive Committee or a motion disapproving the policy of the Executive Committee in regard to any particular matter may be made with the consent of the Chairman and subject to the restriction that the member making the motion shall present to the Secretary a written notice of the motion before the commencement of the sitting of the day.

(2) if the Chairman is of the opinion that the motion is in order, he shall read the motion to the Council and shall request those members who are in favour of leave being granted, to rise in their places and, if not less than one-fourth of the members present rise accordingly, the Chairman shall intimate that leave is granted and that the motion will be taken on such day, not being more than two days and not less than twenty-four hours from the time at which leave is asked for, as he may appoint. Provided that if exigencies of business require, the Chairman shall have power to relax the rules and take up the motion earlier than twenty-four hours.

(3) if less than one fourth of the members rise, the Chairman shall inform the member that he has not the leave of the Council.”
27. By not taking up the motion inspite of the same being tabled in accordance with Rule 71, Dr. Mozika has asserted that the Chairman has failed to perform his constitutional obligations and therefore had acted illegally and arbitrary which can be remedied by this Court only by directing for a floor test to be taken up on a specific date.

28. Again, citing the case of Shiv Sena (supra), Dr. Mozika has submitted that in paragraphs 20, 23,24,25 and 26 of the said Order, the Apex Court has observed as follows:

“20. In a situation wherein, if the floor test is delayed, there is a possibility of horse trading, it becomes incumbent upon the Court to act to protect democratic values. An immediate floor test, in such a case, might be the most effective mechanism to do so. A similar view was expounded by B.P. Jeevan Reddy, J., in the celebrated nine•Judge Bench decision of this Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1, wherein he held as follows:

“395. The High Court, in our opinion, erred in holding that the floor test is not obligatory. If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people — and not the Governor — the position would be clear beyond any doubt. …. There could be no question of the Governor making an assessment of his own. The loss of confidence of the House was an objective fact, which could have been demonstrated, one way or the other, on the floor of the House. In our opinion, wherever a doubt arises whether the council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation where because of all- pervasive violence, the Governor comes to the conclusion — and records the same in his report — that for the reasons mentioned by him, a free vote is not possible in the House.”

23. Six years later, in Anil Kumar Jha v. Union of India, (2005) 3 SCC 150, similar directions were passed by this Court after recording and taking notice of events that had taken place and few developments which were in the offing, as reported in the media, to observe and direct as follows:

“5. Though many a relief has been sought for in the writ petition, as also in the application for grant of ex parte stay, for the present, we are satisfied that a strong prima facie case on the averments made in the petition duly supported by affidavit, has been made out to issue the following interim directions and we order accordingly:
(1) The session of the Jharkhand State Assembly has already been convened for 10-3- 2005 on which day the newly elected Members of the Legislative Assembly shall be administered oath. We direct the session to continue and on 11-3-2005 i.e. the next day and on that day the vote of confidence to be put to test.
(2) The only agenda in the Assembly on 11-3-2005 would be to have a floor test between the contending political alliances in order to see which of the political parties or alliance has a majority in the House and hence a claim for Chief Ministership.
(3) It is emphasised that the proceedings in the Assembly shall be totally peaceful, and disturbance, if any, caused therein shall be viewed seriously.
(4) The result of the floor test would be announced by the pro tem Speaker faithfully and truthfully.
(5) This order by the Court shall constitute notice of the meeting of the Assembly for 11-3-2005 and no separate notice would be required.
(6) Till 11-3-2005 there shall be no nomination in view of Article 333 of the Constitution and the floor test shall remain confined to the 81 elected members only.
(7) We direct the Chief Secretary and the Director General of Police, State of Jharkhand to see that all the elected Members of the Legislative Assembly freely, safely and securely attend the Assembly and no interference or hindrance is caused by anyone therein. Dr. A.M. Singhvi, learned Senior Counsel appearing for the State of Jharkhand through the Chief Secretary and the Director General of Police has very fairly assured the Court that even otherwise it is the duty of the State and its high officials to take care to do so and the direction made by the Court shall be complied with in letter and spirit.”

The aforesaid directions were interim in nature and were passed on the basis of averments made in the petition duly supported by an affidavit. Writ petitions were directed to be listed on the date of hearing fixed.

24. Ten years later, in Union of India v. Sh. Harish Chandra Singh Rawat, (2016) SCC Online SC 442, again an interim order was passed after the special leave petitions were taken up for hearing, though after concession which was made by Mr. Mukul Rohatgi, the then Attorney General for India, that the Union of India has no objection, which the Court had appreciated, to observe that the floor test should be conducted on a special session of Uttarakhand Legislative Assembly to be summoned/convened in which the only agenda would be the vote of confidence sought by the first respondent and apart from the said agenda nothing will be discussed. Directions were issued to the Chief Secretary and the Director General of Police, State of Uttarakhand, to see that all qualified Members of the Legislative Assembly, freely, safely and securely attend the Assembly and no hindrance is caused to them. The floor test was to commence at 11:00 a.m. and was directed to be completed by 1:00 p.m. There was another direction that the Confidence Motion having been put, a division of the House shall take place and members inclined to vote in favour of the Motion shall sit on one side/wing and those voting against the Motion shall sit on the other side/wing. The entire proceedings were to be video-graphed and video recording was directed to be placed before the Court for being perused. The special leave petitions were directed to be listed thereafter.

25. In Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758, the challenge raised was to a press note and communication from a leader of a party to the Governor of the State on the issue relating to whether a particular party had misrepresented the facts. Observing that the sensitive and contentious issue could be resolved by a simple direction requiring holding of the floor test at the earliest. This would remove all possible ambiguities and would result in giving the democratic process, the required credibility. By order dated 14.03.2017, the Governor of the State of Goa was requested to ensure that a floor test is held on 16.03.2017. Further, it would be the only agenda for the day so as to determine whether the Chief Minister administered the oath of office enjoys the support of the majority. The order further highlights that the floor test should be held as early as possible.

26. Lastly, we would refer to G. Parmeshwara v. Union of India, (2018) 16 SCC 46, wherein identical directions were issued in respect of formation of Government in the State of Karnataka to test whether the Chief Minister so appointed enjoyed the majority support of the House. Noticing the fact that the elected members of the Legislative Assembly, as in the present case, were yet to take oath and the Speaker was also not elected, the following procedure was directed to be followed for conducting the floor test:
“8…
(A) Pro-tem Speaker shall be appointed for the aforesaid purpose immediately.

(B) All the elected members shall take oath tomorrow (19-5-2018) and this exercise shall be completed before 4.00 p.m.

(C) The Pro-tem Speaker shall conduct the floor test on 19-5-2018 at 4.00 p.m. in order to ascertain the majority and it shall not be by secret ballot and these proceedings shall be conducted in accordance with law.

(D) Adequate and sufficient security arrangements shall be made and Director General of Police, State of Karnataka will himself supervise the said arrangements so that there is no lapse on this count whatsoever.”

It was directed that the floor test would be conducted immediately the next date, i.e., the date following the order.”

29. On the conduct of the Chairman of the Council, Dr. Mozika has submitted that the Chairman being a constitutional authority holds a pivotal position in the Constitutional scheme of parliamentary democracy and is considered to be the guardian of the rights and privileges of the District Council and its members. He is therefore required to act in a fair and transparent manner and in accordance with democratic values and principles.

30. In this case, the Chairman acting in a partisan manner and in a highly illegal and politically motivated manner in gross violation of democratic principles had adjourned the House soon after the result of the election of the Deputy Chairman, has manifested that the ruling side has lost the confidence of the House and in all probability, if the Non-confidence motion is held, the ruling side would have lost the majority in the House and by adjourning the House sine die, the Chairman has facilitated illegal continuance of the Executive Committee which is totally against the democratic principles and basic structure of the Constitution of India.

31. In this regard, Dr. Mozika has cited the case of “Shrimanth Balasaheb Patil -Vs- Hon’ble Speaker, Karnataka Legislative Assembly,” in Writ Petition (C) No 992 of 2019, in which the Supreme Court has emphasized the requirement of imbibing constitutional morality by the constitutional functionaries. Undemocratic and illegal practices within the political arena should be curtailed.

32. The case of “Union of India -Vs- Shri Harish Chandra Singh Rawat” (2016) SCC Online SC 618 was also cited, where at paragraph 8 of the same the Apex Court has observed as follows:

“8. ….. This Court, being the sentinel on the qui vive of the Constitution is under the obligation to see that the democracy prevails and not get hollowed by individuals. The directions which have been given on the last occasion, was singularly for the purpose of strengthening the democratic values and the constitutional norms. The collective trust in the legislature is founded on the bedrock of the constitutional trust ”

33. Yet another contention raised by the Learned Senior Counsel for the Petitioners in response to the reference of the Learned Counsels for the Respondent to Rule 41 of the ‘Rules’, is that the Respondent cannot take recourse to Rule 41 of the Assam and Meghalaya Autonomous District( Constitution of District Council) Rules 1951(amended) which is para materia with Article 212 of the Constitution of India since in this instant case, the Chairman has committed an illegality and not mere irregularity in as much as Rule 71 (2) has been violated by adjourning the House sine die without fixing any further date for the agenda No 3 to be taken up by the House.

34. Again, citing the case of “Raja Ram Pal -Vs- Speaker, Lok Sabha” reported in (2007) 3 SCC 184, Dr. Mozika has submitted that the Hon’ble Apex Court has held as follows:

“377. In U.P. Assembly case (Special Reference No. 1 of 1964) [AIR 1965 SC 745: (1965) 1 SCR 413 sub nom Keshav Singh, In re] the issue was authoritatively settled by this Court, and it was held, at SCR pp. 455-56, as under: (AIR p. 768, para 62) Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.”

378. With reference to the above quoted observations recognizing the permissibility of scrutiny in a court of law on allegation that the impugned procedure was illegal or unconstitutional, the learned Additional Solicitor General submitted that these observations need to be clarified and the expression “illegality” must necessarily mean “unconstitutionality, that is violation of mandatory constitutional or statutory provisions.

384. The prohibition contained in Article 122(1) does not provide immunity in cases of illegalities. In this context, reference may also be made to Sarojini Ramaswami v. Union of India [(1992) 4 SCC 506: 1992 Supp (1) SCR 108] . The case mainly pertained to Article 124(4) read with the Judges (Inquiry) Act, 1968. While dealing, inter alia, with the overriding effect of the rules made under Article 124(5) over the rules made under Article 118, this Court at SCR pp. 187-88 made the following observations: (SCC p. 572, para 94)

“94. We have already indicated the constitutional scheme in India and the true import of clauses (4) and (5) of Article 124 read with the law enacted under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969, which, inter alia contemplate the provision for an opportunity to the Judge concerned to show cause against the finding of ‘guilty’ in the report before Parliament takes it up for consideration along with the motion for his removal. Along with the decision in U.P. Assembly case (Special Reference No. 1 of 1964) [AIR 1965 SC 745: (1965) 1 SCR 413 sub nom Keshav Singh, In re] has to be read the declaration made in Sub- Committee on Judicial Accountability [(1991) 4 SCC 699] that ‘a law made under Article 124(5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament. A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1).’ The scope of permissible challenge by the Judge concerned to the order of removal made by the President under Article 124(4) in the judicial review available after making of the order of removal by the President will be determined on these considerations.”

35. Dr. Mozika has submitted that under Rule 22 (1) of the Rules, the Executive Committee shall be responsible to the District Council and may be removed on a vote of no-confidence passed by a majority of the members of the District Council at a meeting specially convened for the purpose, the procedure for this is found in Rule 71. The Petitioners are therefore not challenging the validity of the procedure of the House, but only the violation of Rule 22(1) and 71 which is evident from the foregoing submission made herein.

36. Lastly, Dr. Mozika has submitted that the Petitioners are not asking for this Court to convene the session of the House, but as per the prayer made in the writ petition, the Petitioner have made a prayer before this Hon’ble Court to direct the Respondents to convene the session of the House so as to take up the Agenda No 3 as notified vide und Memo No GDC-L/2/Agenda/2015/259-264 dated 26.11.2019.

37. Ms. S. Alam, the Learned Counsel for the Respondent No 2, the Secretary (Legislative), Garo Hills Autonomous District Council, Tura has strongly opposed the submission and contention of the Learned Senior Counsel for the Petitioners in as much as the maintainability of this writ was questioned.

38. Referring to Rule 71(2) of the Rules, Ms. Alam has submitted that once leave was granted for moving the motion, the Chairman will intimate that leave was granted and that the motion will be taken up on such day, not being more than two days and not less than twenty-four hours from the time at which leave was asked for.

39. Ms. Alam went on to submit that after leave was granted to the motion of no-confidence on 25th November, 2019, the agenda for the 14th Session of the GHADC was revised and a third agenda was added that said “ discussion on motion of no-confidence and voting”. However, when the previous agenda was taken up, the election of the Deputy Chairman was held and during the counting, it turned out that the candidate from the ruling party/alliance had got only 13 votes, while the candidate from the opposition had actually got more votes, the ruling party/alliance realized that some of its members had cross-voted and defied the proverbial whip (though Ms Alam has conceded that no whip was actually issued), a meeting of the party members was called and nineteen members walked out resulting in great disturbance in the well of the House. After that, the Chairman did not feel it would be possible to have any reasonable discussion, or that the business of the House could be carried out and it was then that he took the decision to adjourn the House to the next session.

40. The decision to adjourn the House was taken by the Chairman under Rule 44(3) of the Rules which provides that the Chairman may in case of grave disorder arising in the District Council suspend any sitting for such time as may be determined by him. Referring to the case of “S.R. Bommai – Vs- Union of India” (1994) 3 SCC 1 at paragraph 395, Ms. Alam has submitted that the Court recognized that floor tests could be adjourned in extraordinary situations, if it was felt that the atmosphere was not conducive to a free vote, which is the case as far as the said 14th Session of the GHADC is concerned, which prompted the Chairman to act accordingly while adjourning the session.

41. Another contention raised by Ms. Alam is that the Petitioners has not raised any ‘point of order’ challenging the Chairman’s action as provided in Rule 41 of the Rules which states that “No proceedings of the District Council shall be deemed to be, or ever to have been, invalid by reason of any rule not being, or not having been, complied with; but in case of any such non-compliance, any member may raise a point of order”

42. Rule 42(2) of the Rules provides for any member to raise a point of order for the decision of the Chairman, but in doing so shall confine himself to stating that point. However, the Petitioners if they perceived any arbitrariness in the adjournment of the proceedings, the only course open to them is to raise a point of order, which they have not done so.

43. Ms. Alam has again submitted that Rule 41 and 42 of the Rules are pari materia with Article 122 of the Constitution of India, which bars the enquiry of courts into proceedings of parliament. Article 122(1) states that: “the validity of any proceedings in Parliament shall not be called in question on the ground of any irregularity of procedure”. Article 122(2) states that “no officer or member of Parliament in whom power are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of these powers.”

44. To justify the contention made in this regard, Ms Alam has referred to the case of “Ramdas Athawale -Vs- Union of India(UOI) and Ors” reported in (2010) 4 SCC 1/MANU/SC/0212/2010, wherein at paragraphs 25 and 26 of the same, the Supreme Court has observed as under:

25. The question that arises for consideration in this writ petition is whether the decision of the Speaker directing resumption of sitting of the Lok Sabha which was adjourned sine die on 23rd December, 2003 is susceptible to judicial review in a proceeding under Article 32 of the Constitution of India? Under Article 122 of the Constitution, the Courts are precluded from making inquiry into proceedings of Parliament. Article 122 reads as under:

122. Courts not to inquire into proceedings of Parliament: (1): The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or Member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

26. A plain reading of Article 122 makes it abundantly clear that the validity of any proceeding in the Parliament shall not be called in question on the ground of any irregularity of procedure. The prayer in the writ petition is to declare the proceedings in the Lok Sabha pursuant to the Notice dated 20th January, 2004 issued under the directions of the Speaker as unconstitutional. The petitioner is essentially raising a dispute as to the regularity and legality of the proceedings in the House of the People. The dispute raised essentially centers around the question as to whether the Speaker’s direction to resume sittings of the Lok Sabha which was adjourned sine die on 23rd December, 2003 is proper? The Speaker is the guardian of the privileges of the House and its spokesman and representative upon all occasions. He is the interpreter of its rules and procedure, and is invested with the power to control and regulate the course of debate and to maintain order. The powers to regulate Procedure and Conduct of Business of the House of the People vests in the Speaker of the House. By virtue of the powers vested in him, the Speaker, in purported exercise of his power under Rule 15 of the Rules of Procedure and Conduct of Business in Lok Sabha got issued notice dated 20th January, 2004 through the Secretary General of the Lok Sabha directing resumption of sittings of the Lok Sabha which was adjourned sine die on 23rd December, 2003. Whether the resumed sittings on 29th January, 2004 was to be treated as the second part of the 14th session as directed by the Speaker is essentially a matter relating purely to the procedure of Parliament. The validity of the proceedings and business transacted in the House after resumption of its sittings cannot be tested and gone into by this Court in a proceeding under Article 32 of the Constitution of India.”

45. Pointing to the provisions of Rule 47(2) of the Rules, which prescribes that “all business left over on termination of a session shall lapse unless it is included in the list of business on any day during the next session”, Ms. Alam has contended that since the Chairman has not ruled on any point of order relating to the dissolution of the meeting of 27th November 2019, for any reasons connected thereto, therefore in law the motion has lapsed since it is time bound by the Rules itself. The motion of non-confidence has to be discussed and voted upon within two days of leave being granted and since the discussion and voting did not take place within the prescribed period, the motion has lapsed and has to be re-introduced.

46. Ms. Alam has submitted that in the case of “Chahtrapal Singh –Vs- State of U.P.” and in “Gyan Singh –Vs- The District Magistrate, Bijnor (Full Bench)” the Allahabad High Court has held that where a statutory period for holding of meeting to vote on a motion of no-confidence is prescribed, and it does not take place within that time limit, then the motion would lapse and would have to be reintroduced.

47. Finally, Ms. Alam has submitted that the motion may be reintroduced after following due procedure and leave is granted, the meeting may be convened to hold a floor test.

48. Mr. K. Paul, the Learned Counsel for the Respondent 3, the Chairman of the GHADC in his submission before this Court has firstly argued that the Respondent 3 will assail the maintainability of this writ, however has later agreed that this matter may be taken up as a whole and be finally heard on merits.

49. Mr. Paul has also submitted that in view of the embargo provided under Rule 41 of the Rules of 1951, the validity of any proceedings of the House is not amenable to challenge and the same cannot be called in question on the ground of any alleged non-compliance or irregularity and if any such irregularity has occurred, the remedy available is to raise a point of order.

50. Countering the argument advanced by the Learned Senior Counsel for the Petitioners that after the election of the Deputy Chairman which was won by the candidate of the Opposite Parties, if the agenda No 3 was taken up, the probability that the Executive Committee having lost the majority will have to step down, Mr. Paul has submitted that the election of the Deputy Chairman has no bearing on the testing of strength of the House and as such, the apprehension of the Petitioners that they have the majority has no basis at all.

51. Referring to the petition of the writ Petitioners, wherein at Annexure 5 of the same, the Petitioners has annexed a newspaper clipping of a news report under the caption “ NPP-led EC loses majority; Cong wins Dy. Chairman’s post” Mr. Paul has submitted that at page 28 of the writ petition, the concluding part of the newspaper report says that there was a walk out by the treasury benched of the ruling alliance led by the CEM, following which the Chairman/Respondent 3, whose job is to maintain discipline in the House has to adjourn the proceedings by invoking Rule 44(3) of the Rules which reads as follows:

“The Chairman may in case of grave disorder arising in the District Council suspend any sitting for such time as may be determined by him”.

52. In this regard, Mr. Paul has also cited the case of “Ramdas Athawale (supra)” as reported in (2010) 4 SCC 1, more particularly paragraphs 30,31,39 and 40 to submit that there is no illegality or arbitrary conduct of the Chairman while adjourning the said session on 27.11.2019 and that the Chairman’s role is similar to that of the Speaker of the House of Parliament and as such, his conduct in the house cannot be challenged as provided under Rule 41 of the Rules.

53. The relevant portions quoted by Mr. Paul are reproduced herein as follows:

“30. A plain reading of Article 122 makes it abundantly clear that the validity of any proceeding in the Parliament shall not be called in question on the ground of any irregularity of procedure. The prayer in the writ petition is to declare the proceedings in the Lok Sabha pursuant to the Notice dated 20th January, 2004 issued under the directions of the Speaker as unconstitutional. The petitioner is essentially raising a dispute as to the regularity and legality of the proceedings in the House of the People. The dispute raised essentially centers around the question as to whether the Speaker’s direction to resume sittings of the Lok Sabha which was adjourned sine die on 23rd December, 2003 is proper?

31. The Speaker is the guardian of the privileges of the House and its spokesman and representative upon all occasions. He is the interpreter of its rules and procedure, and is invested with the power to control and regulate the course of debate and to maintain order. The powers to regulate Procedure and Conduct of Business of the House of the People vests in the Speaker of the House. By virtue of the powers vested in him, the Speaker, in purported exercise of his power under Rule 15 of the Rules of Procedure and Conduct of Business in Lok Sabha got issued notice dated 20th January, 2004 through the Secretary General of the Lok Sabha directing resumption of sittings of the Lok Sabha which was adjourned sine die on 23rd December, 2003. Whether the resumed sittings on 29th January, 2004 was to be treated as the second part of the 14th session as directed by the Speaker is essentially a matter relating purely to the procedure of Parliament. The validity of the proceedings and business transacted in the House after resumption of its sittings cannot be tested and gone into by this Court in a proceeding under Article 32 of the Constitution of India.

39. No decision of the Speaker can be challenged by a member of the House complaining of mere irregularity in procedure in the conduct of the business. Such decisions are not subject to the jurisdiction of any Court and they are immune from challenge as understood and explained in Keshav Singh’s case and further explained in Indira Nehru Gandhi v. Raj Narain wherein it was observed that: (Indira Nehru case, SCCp. 46, para 70)

“70… the House is not subject to the control of the courts in the administration of the internal proceedings of the House.”

40. It is a right of each House of Parliament to be the sole judge of the lawfulness of its own proceedings. The Courts cannot go into the lawfulness of the proceedings of the Houses of Parliament. The Constitution aims at maintaining a fine balance between the Legislature, Executive and Judiciary. The object of the constitutional scheme is to ensure that each of the constitutional organs function within their respective assigned sphere. Precisely, that is the constitutional philosophy inbuilt into Article 122 of the Constitution of India.”

54. On the reliance of Learned Senior Counsel for the Petitioners on the case of Shiv Sena (supra), Mr. Paul has submitted that there is no proceedings of the House and as such, Article 122 cannot be invoked.

55. On the averments made by the Petitioners in the writ petition at paragraphs 11 and 12, Mr. Paul has submitted that assertion of the Petitioners that by not taking up the motion of non-confidence within twenty-four hours and upto maximum of 2 days from the time leave was asked for and by adjourning the House sine die, the Chairman had acted illegally, is not correct in as much as the Chairman had acted in accordance with the Rules and as per Rule 41 of the Rules. What happened within the domain of the House cannot be challenged.

56. Mr. Paul has also referred to Rule 36 of the Rules and has submitted that there is a provision in the Rules which provides for summoning of the District Council. Proviso 2 of the said Rule reads as follows:

“ ….. Provided further that on receipt of a requisition signed by not less than two-thirds of the members of a District Council, the Chairman shall summon a special meeting of the Council….”

This according to Mr. Paul is the remedy available to the Petitioners for the alleged infraction complained of, which the Petitioners have not taken recourse to but has instead approach this Court with this Writ Petition and as such, this writ is not maintainable and is liable to be dismissed.

57. Finally Mr. Paul would submit that as per the above mentioned proviso to Rule 36 of the Rules, the Chairman, as and when the requisition is received, will take up the matter of the motion of non-confidence.

58. Having duly noted the submission and contention of the parties herein, the Respondent No 1 choosing not to participate in this matter, this Court has given due consideration to the issues raised by the learned Counsel for the rival parties.

59. What has to be decided, the facts and circumstances of the case having been recorded above which needs no repetition, is the answer to the question as to whether the Chairman while adjourning the House sine die on 27th November, 2019 without taking up the agenda No 3, that is, the motion of non-confidence, has committed an irregularity or an illegality and arbitrary act, thus depriving the of the Petitioners as members of the Garo Hills Autonomous District Council their privileges and exercise of their rights.

60. The fact situation of the case which is not is dispute is that the Respondent 3 as Chairman of the GHADC has adjourned the sitting of the House on 27-11-2019 as soon as the agenda No 2 was taken up and election of the Deputy Chairman of the House was concluded, resulting in the member of the Opposition alliance, Shri Mettringson Momin to triumph over Shri Augustine R. Marak, the member of the ruling party/alliance. This has resulted in the agenda No 3, slated to be taken up next which is regarding the discussion and voting of the Non-Confidence motion, not to be taken up on that day.

61. In the case of “Ramdas Athawale” (supra), the question raised before the Court is whether the action of the Speaker to direct resumption of the sitting of the Lok Sabha, which was adjourned sine die on 23rd December 2003 is proper or not. The Apex Court having heard the parties and noting the submission and contention raised and after discussing the matter, has in essence held that the action of the Speaker to direct resumption of the sittings is valid and deserved no interference by the Court.

62. In the instant case, the decision of the Chairman to adjourn the 14th sitting of the GHADC on 27-11-2019, for whatever motive one can impute, has the backing of the relevant Rule, more particularly Rule 44 (3).

63. The fact that the Chairman had adjourned the sitting sine die, which means the termination of a sitting of the House without any definite date being fixed for its sitting, would make one to presume that the Chairman had resorted to Rule 44(3) in doing so.

64. As to the procedural aspect of the action taken by the Chairman in adjournment of the sitting of the House sine die under Rule 44(3), the prerogative solely being vested on the Chairman, the same cannot be said to be invalid and therefore would be covered by Rule 41 of the Rules.

65. The Chairman by adjournment of the House sine die on 27-11-2019 without taking up agenda No3 has caused non compliance of Rule 71(2) of the Rules. However, this too would be saved by the application of Rule 41.

66. Following the ratio in the case of “Ramdas Athawale”, this Court would affirm that the conduct of the Chairman in adjournment of the sitting of the House sine die on 27-11-2019, if, for reasons of grave disorder, would not be interfered with.

67. On the other hand, under the peculiar facts and circumstances of this case, the argument of the Learned Senior Counsel for the Petitioners that the action of the Chairman in adjourning the House sine die on 27-11- 2019 without taking up agenda No 3 which relates to the discussion and voting on the Non-Confidence motion, leave of which the Chairman had granted, smacks of partisan attitude of the Chairman in as much as, after seeing the loss of the candidate of the ruling party/alliance to the post of Deputy Chairman of the House, it would be naturally assumed that the very next agenda on the motion of non-confidence would go the same way, that is, a defeat of the ruling party/alliance and the inevitable fall of the Executive Committee, the Chairman being a member of the ruling party/alliance, has some credence.

68. Time and again, the Apex Court in a catena of cases has emphasized the requirement of imbibing constitutional morality by constitutional functionaries and in the case of Shiv Sena (supra) as relied upon by the Petitioners, the Apex Court taking this factor into consideration has acceded to the prayer of the Petitioners therein and has directed that a floor test be conducted on the terms and conditions laid down therein.

69. In this regard, the reliance of the Learned Senior Counsel for the Petitioners on the Shiv Sena case, more particularly at paragraphs 20,23,25 and 26 of the same (reproduced at paragraph 27 above) finds its acceptance with this Court, the principles being similar to that of the case in hand, in as much as there is a demand for the ruling party/alliance to prove its strength and this can only be done on the floor of the House.

70. The learned Counsels for the Respondents have also raised the issue that, if aggrieved by the decision of the Chairman to adjourn the House sine die, the Petitioners have the remedy of raising a ‘Point of Order’ as contemplated under Rules 41 and 42 of the Rules, which was not resorted to by the Petitioners and as such, the said decision of the Chairman cannot be questioned at this point of time.

71. Any member may raise a point of order in case of non- compliance of any rule, Rule 71(2) in this case and the same will be considered by the Chairman as provided under Rule 42 of the Rules.

72. Rule 42 reads as follows:
“42. (1) The Chairman shall decide all points of order of which may arise and his decision shall be final.
(2) Any member may, at any time, submit a point of order for the decision of the Chairman, but in doing so shall confine himself to stating the point.”

73. Before answering this point, a look at the meaning and purport of a ‘Point of Order’ will reveal as to whether the Petitioners have lost the opportunity to press for a ruling from the Chairman in this regard.

74. According to one definition, a Point of Order relates to the interpretation or enforcement of the Rules of Procedure and Conduct of Business in the House or convention or such Articles of the Constitution as regulate the business of the House and raises a question which is within the cognizance of the Speaker. A Point of Order may be raised only in relation to the business before the House at the moment, provided that the Speaker may permit a Member to raise a Point of Order during the interval between the termination of one item of business and the commencement of another if it relates to maintenance of order in, or arrangement of business before, the House. A Member may formulate a Point of Order and the Speaker shall decide whether the point raised is a Point of Order and if so give the decision thereon, which is final.

75. Considering the fact that the Chairman had abruptly adjourned the sitting of the house on 27-11-2019 as soon as the agenda No.2 was taken up and decided would show that no opportunity was presented to the petitioners to raise a ‘Point of Order’ and as such, the arguments of the learned counsel for the respondents in this regard cannot be accepted.

76. As to the argument advanced by Mr. Paul that the petitioners have also the remedy available to them according to the second proviso of Rule 36 of the Rules and that as and when the said requisition is made the Chairman will take up the matter of the Non-Confidence Motion, what can be understood here is that a special meeting of the council can be requisitioned by not less than two third of the members of the District Council upon which the Chairman will summon the special meeting.

77. Again what can be understood by the expression ‘adjourned sine die’ in popular parliamentary practice means the termination of a sitting of the House without any definite date being fixed for its next sitting.

78. It is also well settled that in this present case, it is the Chairman who has adjourned the sitting of the House sine die and consequently, it is also the Chairman who has the power to issue direction for sitting of the House subsequently and as such the House is considered to be in session, unless it is prorogue or dissolved and no question of requisition will arise under the circumstances.

79. At this juncture, it may be pointed out that from the argument of the parties, the Petitioners have prayed for a direction to the Respondent to convene the sitting of the House to take up the motion of Non-Confidence, while the Respondent No 2 is not averse to the proposition as is evident from paragraph 15 of the Affidavit of the Respondent No.2, wherein it is averred that the motion may be reintroduced after following procedure, leave if granted to the motion then meeting may be convened to hold the floor test and from the submission of the Learned Counsel for the Respondent 3, Mr. K. Paul who has submitted that if requisition is made by the members, the Chairman on consideration of the same may convene the House for taking up the motion of Non-Confidence. It therefore appears that all concerned are not opposed to the sitting of the House to take up the motion of Non- Confidence.

80. Again, since the matter vests in the Chairman and no definite date was fixed for resumption of the sitting of the House for taking up the said Agenda No 3, as was held in the Shiv Sena case (supra), if the floor test is delayed, there is a possibility of horse trading.

81. In view of the above and placing reliance on the authority of the Shiv Sena case (supra) and the principles enunciated therein in as much as the Apex Court has held that it is incumbent upon the Court to act to protect democratic values, considering the conduct of the Chairman in this case, as an equitable relief, I am of the considered opinion that in exercise of the power under Article 226 of the Constitution of India, this writ petition be disposed of with the following directions:

1. That the Respondent No 3 is to convene the sitting of the Garo Hills Autonomous District Council within one week from today.

2. That the sole agenda of the said sitting will be to take up the motion of Non-Confidence for discussion and voting.

82. With the above, this writ petition is hereby disposed of.

83. No costs.

84. Registry is directed to furnish a copy of this Order to the Chairman, Garo Hills Autonomous District Council, Tura for compliance.

Judge

Meghalaya
03.01.2020
“D.Nary, PS”

The post Shri. Stevie M. Marak & 2 Ors Vs. GHADC & Ors appeared first on B&B Associates LLP.

CLASS ACTION COMPLAINT CONCERNING MASSIVE DAMAGE CAUSED BY DEFENDANTS AS A RESULT OF CLOVID-19 RELEASE FROM AN ILLEGAL AND INTERNATIONALLY OUTLAWED BIOWEAPONS FACILITY IN THE CITY OF WUHAN OF THE PEOPLE’S REPUBLIC OF CHINA

In this class action complaint, lead Plaintiffs Buzz Photo, Freedom Watch, Inc., Larry Klayman putative plaintiffs as members of the class and subclasses and all persons and entities similarly situated (collectively “Plaintiffs”) sue Defendant the People’s Republic of China and the other Defendants as set forth herein, and show and allege as follows:

I. INTRODUCTION AND NATURE OF THE ACTION

1. This is a complaint for damages and equitable relief arising out of the creation and release, accidental or otherwise, of a variation of coronavirus known as COVID-19 by the People’s Republic of China and its agencies and officials as a biological weapon in violation of China’s agreements under international treaties,1 and recklessly or otherwise allowing its release from the Wuhan Institute of Virology into the city of Wuhan, China, in Hubei Province, by among other acts failing to prevent the Institute’s personnel from becoming infected with the bioweapon and carrying it into the surrounding community and proliferation into the United States.

1 which in the nature of biological warfare can include discovering a life-threatening virus or bacteria already existing in nature but then refining, developing, adapting, and/or perfecting it as a weapon and illegally maintaining a stockpile of the bioweapon.

2. Since biological weapons have been outlawed since at least 1925, including by China’s membership in treaties, these illegal weapons constitute and are in effect terrorist-related weapons of mass destruction of population centers.
3. This is a civil action on behalf of the lead Plaintiffs and other members of the class comprised of subclasses identified herein of those directly injured by the spread of COVID-19.

II. JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action pursuant to the Justice Against Sponsors of Terrorism Act (“JASTA”) exception 18 U.S.C. § 2333.

5. The JASTA exception to the Foreign Sovereign Immunities Act (28 U.S.C. 1602, et seq.) incorporates the definition of international terrorism from 8 U.S.C. 2331.

6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(2), (3) and (4), as a civil action brought by citizens of the United States against subjects of a foreign state or foreign state, because there is complete diversity of citizenship between the Plaintiffs and the Defendants in China.

8. This Court also has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1605 (general exceptions to jurisdictional immunity of a foreign state).

9. The matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.

10. This Court also has supplemental jurisdiction over this action pursuant to 28 U.S.C. § 1367.

11. Venue is proper in this district pursuant to 18 U.S.C. § 2334(a) and 28 U.S.C. §§ 1391(b) and 1391(d).

12. This class action complaint is being brought pursuant to Rule 23 (a) et. seq of the Federal Rules of Civil Procedure.

III. PARTIES AND STANDING

13. Plaintiff Buzz Photos, which is located in and does and did substantial business in this judicial district, specializes in high school sports photography, serving students, parents, and schools in memorializing school events and promoting family and community involvement in school events. The interruptions and closings of schools and cancellation of sports events caused by the illegal acts and practices alleged herein by each and every Defendant, jointly and severally, acting in concert as joint tortfeasors, has shut down and closed Buzz Photos’ business and its stands on the verge of bankruptcy. The company lost about $50,000 over the last weekend alone. The company has been forced by the COVID-19 epidemic to lay off employees.

14. Plaintiff Freedom Watch, Inc. is a 501(c)(3) non-profit corporation, which depends upon relatively small donations from many individuals. Freedom Watch has a significant number of its donors who are individuals and entities in Texas and in this judicial district and thus it does substantial business in this district. The ability to donate is greatly reduced by the economic recession and disruption and economic panic and growing catastrophe caused by the COVID-19 pandemic.

15. Plaintiff Larry Klayman is a citizen of Florida, who is admitted in the U.S. Disrict Court for the Northern District of Texas and he himself does substantial business in this district as a private practitioner.

16. Other putative plaintiffs are members of the class and its subclasses.

17. The Defendant People’s Republic of China (“PRC”) is the recognized government of the nation country commonly known as “China.”

18. The People’s Liberation Army (“PLA”) is the official military arm of the PRC.

19. The Wuhan Institute of Virology is a biological laboratory about 20 miles from the center of the city of Wuhan in China, which the Plaintiffs and members of the class and subclasses allege includes an illegal biological weapons laboratory.

20. Shi Zhengli is the Director of the Wuhan Institute of Virology in Wuhan, China.

21. Major General Chen Wei of China’s PLA, at the PLA’s Academy of Military Medical Sciences, is the Chinese military’s top epidemiologist and virologist, who is not only leading China’s responses to the COVID-19 epidemic but also led the creation of the COVID-19 coronavirus as a bioweapon for China’s military.

IV. CLASS ACTION STATUS

22. Plaintiffs and other members of the class and subclasses will move the Court to certify this case and its causes of action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure (“FRCP”), including sub-classes.

23. FRCP Rule 23(a)(1) requires the lead Plaintiffs to show that “the class is so numerous that joinder of all members is impracticable.”

24. FRCP Rule 23(c)(5) provides that “[w]hen appropriate, a class may be divided into subclasses that are each treated as a class under this rule.”

25. Numerosity should be shown for each proposed class and subclass. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 595 (3rd Cir. 2012). Some courts find that numerosity is typically established when there are at least 40 class members. Id.

26. Rule 23(a)(3) requires the Plaintiffs to show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Plaintiff and the members of the class and subclasses can easily make this and other related showings under FRCP 23 for this suit to qualify as a class action.

27. Sub-class #1 for which the lead plaintiffs seek certification as a class consists of those who have been personally and physically infected by the COVID-19 virus as an illegal biological weapon, including have already died, or are now suffering damages of sickness, medical costs, disruption of regular activities and life, fear, emotional distress, and direct economic losses.

28. An estimated 3,000 U.S. citizens thus far have been infected with COVID-19 as of March 15, 2020, per the latest report by NBC News, and an estimated 61 have died as of March 15, 2020, according to CBS News, although the delay in widespread testing for the virus renders these numbers understated.

29. Accordingly, joinder of at least over 3,000 persons afflicted with the illness, a class which is rapidly expanding, is not practical.

30. The claims of the lead plaintiffs and of each member of the sub-classes are in substance the result of the same illegal acts and practices of each of the Defendants, acting in concert jointly and severally as joint tortfeasors, differing only in the extent of illness, the amount of medical bills, other expenses, lost income, and other consequences of the illness.

31. Sub-class #2 for which the lead plaintiffs seek certification as a class consists of those who have been injured financially by the severe disruption to the U.S. economy made necessary by efforts to contain and slow the spread of the pandemic.

32. Like named Plaintiffs Freedom Watch, Inc. which depends upon donations from thousands of typically-small donors from the public from their available funds and discretionary income, millions of employees, individuals working as IRS Form 1099 “contractors,” small businesses, large businesses, travel companies and others are suffering dramatic if not catastrophic economic losses from the attempts at isolation and quarantine to contain the spread of the virus.

33. The number of unemployed, under-employed and disrupted small businesses is in the hundreds of thousands and growing rapidly.

34. As just one notable example, Disney World in Orlando, Florida and Universal Orlando have been closed, and many schools and universities. https://www.dmagazine.com/frontburner/2020/03/a-running-list-of-dallas-cancellations-and-changes-due-to-coronavirus/

35. Ohio and Illinois, among other states and localities, which are increasing minute by minute, have ordered the closure of all bars and restaurants throughout those States, and other States will quickly follow. Sports events and other public gatherings also also being cancelled and the list is too long to set forth in this Complaint.

36. On Sunday, March 15, 2020, the Centers for Disease Control recommended cancellation of all gatherings of 50 people or more for 8 weeks to slow the spread of the coronavirus pandemic. Madeline Holcombe and Dakin Andone, “The CDC recommends organizers cancel or postpone events with 50 people or more for 8 weeks,” CNN, March 15, 2020, accessible at https://www.cnn.com/2020/03/15/health/us-coronavirus-sunday-updates/index.html

37. On Sunday, March 15, 2020, the Federal Reserve Bank dropped interest rates at which banks may borrow from the Federal Reserve at the so-called “discount window” to 0%, and launched a massive $700 billion of infusion of money into the financial system. Steve Liesman, ” Federal Reserve cuts rates to zero and launches massive $700 billion quantitative easing program,” CNBC.com, March 15, 2020, accessible at: https://www.cnbc.com/2020/3/15/federal-reserve-cuts-rates-to-zero-and-launches-massive-700-billion-quantitative-easing-program.html.

For this and other reasons related to the COVID-19 pandemic, American stock markets are in a free fall and have already lost about 30% of their value, which more severe losses expected to continue as part of a stock market crash.

38. During the day on Monday, March 16, 2020, the Federal Reserve increased its total of financial support for the financial industry by another $500 billion from $1.5 trillion.

39. Accordingly, joinder of those losing money in the near shut down of parts of our economy, a class which is rapidly expanding, is not practical.

40. The claims of the lead Plaintiffs and of each member of the class and sub-classes are in substance all the same, differing only in the amount of lost income, other expenses, lost income, and other consequences of the medical and economic disruption.

V. FACTS COMMON TO ALL COUNTS

41. On or about November 15, 1984, China acceded to, ratified, and joined the “Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction” (hereinafter the “Biological Weapons Convention”). See: http://disarmament.un.org/treaties/t/bwc/text

42. As a member of the treaty, China has legally agreed under international law that the manufacture, stockpiling, or deployment of biological weapons are outlawed and illegal.

43. China has agreed in that treaty that —

Determined, for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons,

Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this risk, Have agreed as follows:

Article I

Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

(1) microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

(2) weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Article II

Each State Party to this Convention undertakes to destroy, or to divert to peaceful purposes, as soon as possible but not later than nine months after the entry into force of the Convention, all agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, which are in its possession or under its jurisdiction or control. In implementing the provisions of this Article all necessary safety precautions shall be observed to protect populations and the environment.

Article III

Each State Party to this Convention undertakes not to transfer to any recipient whatsoever, directly or indirectly, and not in any way to assist, encourage, or induce any State, group of States or international organisations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in Article I of the Convention.

Article IV

Each State Party to this Convention shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.

Article V

The States Parties to this Convention undertake to consult one another and to co-operate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention. Consultation and co-operation pursuant to this Article may also be undertaken through appropriate international procedures within the framework of the United Nations and in accordance with its Charter.

Article VI

(1) Any State Party to this Convention which finds that any other State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council.

(2) Each State Party to this Convention undertakes to co-operate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Parties to the Convention of the results of the investigation.

Article VII

Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.

Article VIII

Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925.

44. China is also a member of the “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare,” signed at Geneva on 17 June 1925 (“Geneva Weapons Convention”).

45. Coronavirus is a grouping of viral diseases which are generally analogous to influenza, but even more harmful and deadly.

46. Coronavirus variations have been known in years past.

47. However, on November 17, 2019, a new military weapon variation of coronavirus was noticed in Wuhan city, in central China’s Hubei province, although reporting from government records makes it unclear if it was recognized so early as a new disease. Josephine Ma, ” Coronavirus: China’s first confirmed Covid-19 case traced back to November 17,” South China Morning Post, March 13, 2020, accessible at https://www.scmp.com/news/china/society/article/3074991/coronavirus-chinas-first-confirmed-covid-19-case-traced-back

48. This new virus has been designated as COVID-19 or SARS-CoV-2.

49. The first case confirmed to be COVID-19 infection is admitted to be on December 8, 2019. Id.

50. However, doctors in Wuhan and throughout China “were also ordered not to disclose any information about the new disease to the public.” Id.

51. COVID-19 is an extremely dangerous disease, because it has an extremely aggressive nature, was designed to mutate from person to person, spreads very quickly and easily, no vaccine exists yet on account of it being a new disease, the means of transmission are not fully known with certainty, and treatments are only just being worked out, and the disease appears to be about ten times as deadly as the flu.

52. COVID-19 was designed by China to be a very “effective” and catastrophic biological warfare weapon to kill mass populations.

53. Studies from scientists at Princeton University undergoing peer review show that COVID-19 can survive in the air for up to three hours and be transmitted in the air and can survive on inanimate surfaces for up to three days. See: John Bowden, “Tests Indicate Coronavirus Can Survive in the Air,” The Hill, March 11, 2020, accessible at: https://thehill.com/policy/healthcare/487110-tests-indicate-coronavirus-can-survive-in-the-air

54. This makes COVID-19 a very unusual and dangerous virus, seemingly hand- crafted to spread rapidly through multiple pathways.

55. Meanwhile, there are many indications besides the nature of the disease demonstrating that the virus was engineered in the Chinese military’s laboratory or laboratories

56. In publicly and officially speaking about efforts in China to respond to COVID- 19, Chinese leader Xi Jinping specifically linked efforts to prevent similar future threats to security of biological laboratories. Xi explained these efforts by saying that laboratory safety is a “national security” issue. See: Steven Mosher, “Don’t buy China’s story: The coronavirus may have leaked from a lab,” New York Post, February 22, 2020, accessible at: https://nypost.com/2020/02/22/dont-buy-chinas-story-the-coronavirus-may-have-leaked-from-a-lab/

57. The very next day, the Chinese Ministry of Science and Technology released a new directive titled: “Instructions on strengthening biosecurity management in microbiology labs that handle advanced viruses like the novel coronavirus.” Id.

58. Thus, China’s military and national leadership clearly linked the origins and spread of COVID-19 with safety protocols and containment at China’s biomedical microbiology laboratories.

59. The New York Post in a piece by Steven Mosher further reveals:

“It sure sounds like China has a problem keeping dangerous pathogens in test tubes where they belong, doesn’t it? And just how many “microbiology labs” are there in China that handle “advanced viruses like the novel coronavirus”?

It turns out that in all of China, there is only one. And this one is located in the Chinese city of Wuhan that just happens to be … the epicenter of the epidemic.

That’s right. China’s only Level 4 microbiology lab that is equipped to handle deadly coronaviruses, called the National Biosafety Laboratory, is part of the Wuhan Institute of Virology. Id.

60. Thus, although China’s government — which has power over all of China’s society and has always been opaque and non-forthcoming to other nations – has admittedly in official statements linked the viral epidemic that broke out in Wuhan with the need to strengthen safety protocols and security measures at the microbiology laboratory in Wuhan in Hubei Province.

61. The Wuhan Institute of Virology is used for China’s illegal biological warfare weapons programs, according to experts:

“Dany Shoham, a former Israeli military intelligence officer who has studied Chinese biological warfare, said the institute is linked to Beijing’s covert bio-weapons program.

* * *

“China has denied having any offensive biological weapons, but a State Department report last year revealed suspicions of covert biological warfare work.
* * *

“Asked whether the new coronavirus may have leaked, Mr. Shoham said: “In principle, outward virus infiltration might take place either as leakage or as an indoor unnoticed infection of a person that normally went out of the concerned facility. This could have been the case with the Wuhan Institute of Virology, but so far there isn’t evidence or indication for such incident.

Bill Gertz, The Washington Times, January 26, 2020, accessible at https://www.washingtontimes.com/news/2020/jan/26/coronavirus-link-china-biowarfare-program-possible/

The former Israeli military intelligence doctor also said suspicions were raised about the Wuhan Institute of Virology when a group of Chinese virologists working in Canada improperly sent to China samples of what he described as some of the deadliest viruses on earth, including the Ebola virus.

In a July article in the journal Institute for Defense Studies and Analyses, Mr. Shoham said the Wuhan institute was one of four Chinese laboratories engaged in some aspects of biological weapons development.

He said the secure Wuhan National Biosafety Laboratory at the institute was engaged in research on the Ebola, Nipah and Crimean-Congo hemorrhagic fever viruses.

The Wuhan virology institute is under the Chinese Academy of Sciences, but certain laboratories within it “have linkage with the PLA or BW- related elements within the Chinese defense establishment,” he said.

* * *

The Wuhan Institute of Biological Products is a civilian facility but is linked to the Chinese defense establishment. Mr. Shoham said it is thought to be involved in the Chinese Biological Weapons Convention program. China’s vaccine against SARS is probably produced there.

Id.

“Mr. Shoham holds a doctorate in medical microbiology. From 1970 to 1991 he was a senior analyst with Israeli military intelligence for biological and chemical warfare in the Middle East and worldwide, holding the rank of lieutenant colonel.

* * *

Asked if the new coronavirus may have leaked, Mr. Shoham said: “In principle, outward virus infiltration might take place either as leakage or as an indoor unnoticed infection of a person that normally went out of the concerned facility. This could have been the case with the Wuhan Institute of Virology, but so far there isn’t evidence or indication for such incident.”

Bill Gertz, The Washington Times, January 24, 2020, accessible at https://www.washingtontimes.com/news/2020/jan/24/virus-hit-wuhan-has-two-laboratories-linked-chines/

62. Many reputable people and organizations and experts have thus come to the conclusion that this crisis began when a Chinese biological weapons facility accidentally released the COVID-19 virus into the atmosphere. An opinion column in The Hill states:

“The conventional, and mostly likely, view of the COVID-19 outbreak is that it originated in Wuhan, China, near the most sophisticated Chinese bioweapons lab and then proceeded into the world from there, leaving people to guess whether it originated in the lab and leaked, came from wild bats or snakes, or came from exotic meat market. Grady Means, “The coronavirus: Blueprint for bioterrorism,” The Hill, March 9, 2020, accessible at https://thehill.com/opinion/national-security/485921-the-coronavirus-blueprint-for-bioterrorism

63. It has been reported that:

“The very first patient identified had not been exposed to the market, suggesting the virus may have originated elsewhere and been transported to the market, where it was able to thrive or jump from human to animal and back again.”

Jackson Ryan, “Coronavirus and COVID-19: All your questions answered,” Cnet.com, March 11, 2020, section “Where did the virus come from,” accessible at https://www.cnet.com/how- to/coronavirus-and-covid-19-all-your-questions-answered/#wherefrom (emphasis in original).

See, also, Prof Chaolin Huang, MD, Yeming Wang, MD, Prof Xingwang Li, MD, Prof Lili Ren, PhD, Prof Jianping Zhao, MD, Yi Hu, MD, et al., “Clinical features of patients infected with 2019 novel coronavirus in Wuhan, China,” THE LANCET, Volume 395, Issue 10223, February 15, 2020, accessible at: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30183-5/fulltext#seccestitle170

64. Those, including doctors and researchers, trying to spread the word in China about the new COVID-19 disease were arrested or “disappeared.”

65. Dr. Li Wenliang of Wuhan finally violated Chinese censorship and raised the alarm to the outside world internationally through a chat room of his classmates on December 30, 2019.

66. Dr. Li was then summoned by authorities in China, reprimanded, and silenced.

67. Speaking to the New York Times, he explained: “If the officials had disclosed information about the epidemic earlier,” Dr. Li told The Times.“I think it would have been a lot better. There should be more openness and transparency.”

68. On February 6, 2020, Dr. Li then, not coincidentally, died of the very disease he was working to fight.

69. Major General Chen Wei of China’s PLA, of the PLA’s Academy of Military Medical Sciences, played a leading role within China of fighting the SARS outbreak in 2003-2003, and to fight Ebola including developing a vaccine for Ebola in 2014.

70. Nevertheless, these efforts to minimize the damage caused for fighting disease within the Chinese military also provided Chen with expertise in recognizing, devising, and stockpiling for China’s military the most effective bioweapons.

71. Indeed, curiously, in the attempt to put the COVID-19 disease “back in the bottle” Major Gen. Chen injected herself and six members of her staff with a potential vaccine which had not yet been tested on animals. David Gilbert, “A Chinese Doctor Injected Herself with an Untested Coronavirus,” Vice, March 4, 2020, accessible at: https://www.vice.com/en_us/article/v74p5y/a-chinese-doctor-injected-herself-with-an-untested-
coronavirus-vaccine

72. Thus, through the use of a possible vaccine on herself, Major Gen. Chen’s actions are consistent with desperation and her and her nation’s guilt that the Chinese military and all of the Defendants, acting in concert, jointly and severally as joint tortfeasors, caused this burgeoning national and world catastrophe.

VI. CAUSES OF ACTION

FIRST CAUSE OF ACTION
AIDING AND ABETTING THE RISK OF DEATH OR
SERIOUS BODILY INJURIES TO UNITED STATES CITIZENS AND MEMBERS OF THE CLASS AND SUBCLASSES IN VIOLATION
OF 18 U.S.C. § 2332(a); 18 U.S.C. § 2332(b); 18 U.S.C. § 2332(c) AND 18 U.S.C. § 2333

73. Plaintiffs and the other members of the class and subclasses repeat and re-allege each and every allegation of the foregoing paragraphs as if fully set forth herein.

74. By the acts alleged herein, Defendants, each and every one of them, jointly and severally as joint tortfeasors, are committing and/or aiding and abetting and conspiring to help the commission of acts of international terrorism.

75. Each of the Defendants provides substantial assistance to acts of terrorism in violation of 18 U.S.C. § 2332 and 18 U.S.C. § 2332a.

76. Each of the Defendants knows, or has recklessly disregarded, that it is providing material support to what is in effect constitutes international terrorism.

77. By aiding and abetting violations of 18 U.S.C. § 2332 that have caused harm as pled herein and at a minimum placed each of the Plaintiffs in imminent danger in his or her person, property, and/or business.

78. Defendants are jointly and severally liable as joint tortfeasors pursuant to 18 U.S.C. § 2333 for any and all damages that Plaintiff(s) have sustained as a result of such injuries.

SECOND CAUSE OF ACTION
PROVISION OF MATERIAL SUPPORT TO TERRORISTS IN VIOLATION OF 18 U.S.C. § 2339A AND 18 U.S.C. § 2333

79. Plaintiffs and each of the members of the class and subclasses repeat and re-allege each and every allegation of the foregoing paragraphs as if fully set forth herein.

80. Each of the Defendants, each and every one of them acting in concert as joint tortfeasors is providing material support to the preparation and carrying out of numerous acts of what in effect constitutes international terrorism which have placed the Plaintiff(s) in imminent danger of death or illness.

81. By participating in the commission of violations of 18 U.S.C. § 2339A that have caused each of the Plaintiffs to be injured in his or her person, business or property, Defendants are jointly and severally liable pursuant to 18 U.S.C. § 2333 for any and all damages that Plaintiffs and the class and subclasses have sustained as a result of the actions pled herein.

82. As a result of such support to terrorist groups, Defendants violated the law of nations, established U.S. law, international laws, treaties and norms, including but not limited to those sections previously set forth: The Declaration on Measures to Eliminate International Terrorism and citations therein incorporated by reference adopted by the United Nations General Assembly on December 9, 1994 (GA Res. 49/50); The Anti- Terror Act, 18 U.S.C. 113B; The Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996); The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA Patriot Act”), Pub. L. No. 107-56, 115 Stat. 271 (2001); The Convention on the Prevention and Punishment of the Crime of Genocide; Art. 2, December 9, 1949, 78 UNTS; International Convention for the Suppression of the Financing of Terrorism, 39 I.L.M. 270 (Dec. 9, 1997); G.A. Res. 54/109, 1 UN Doc A/RES/54/109 (Dec. 1, 1999) and ratified by over 130 countries (The Financing Convention); United Nations Charter, 59 State. 1031, 3 Bevans 1153 (1945); Universal Declaration of Human Rights, G.A. Res. 217A (iii), U.N. Doc. A/810 (1948); International Covenant on Civil and Political Rights, G.A. Res. 2222A(xxi), 21 U.N. Doc., GAOR Supp. (No. 16) at 52 U.N. Doc. A 6316 (1966); Common Article 3 of the 1949 Geneva Convention; Article 4 and 13 of the 1997 Geneva Protocol II; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 37 I.L.M. 1(Dec. 18, 1997); and other fundamental principles.

THIRD CAUSE OF ACTION
CONSPIRACY TO CAUSE INJURY AND EVEN DEATH OF U.S. CITIZENS AND MEMBERS OF THE CLASS AND SUBCLASSES
IN VIOLATION OF 18 U.S.C. §§ 2332(b) and 2333

83. Plaintiffs and each of the members of the class and subclasses repeat and re-allege each and every allegation of the foregoing paragraphs as if fully set forth herein.

84. Although it appears that the COVID-19 virus was released at an unplanned, unexpected time, it was prepared and stockpiled as a biological weapon to be used against China’s perceived enemies, including but not limited to the people of the United States.

85. While COVID-19 virus may be too slow acting and slow-spreading to be used quickly against an enemy’s military, it was designed to be used agaist the general population of one or more of China’s perceived enemy nations, such as the United States.

86. Thus, the Defendants, each and every one of them acting in concert jointly and severally as joint tortfeasors, created and/or refined and then stockpiled biological weapons for the express purpose of using such weapons against its perceived enemies, including but not limited to the people of the United States.

87. The Defendants, each and every one of them acting in concert jointly and severally as joint tortfeasors, acted and/or conspired to harm U.S. citizens using these biological weapons.

88. Because China has agreed by treaty to outlaw such weapons, these actions cannot be official governmental actions of the People’s Republic of China and are not subject to any possible claim of legal immunity from suit.

89. Although the actual release of the COVID-19 bioweapon appears to have been unintentional and not intended to be released in the laboratory’s backyard, the purpose of maintaining the virus within the laboratory was to use it to kill U.S. citizens and other persons and entities in nations perceived to be an enemy of China.

90. The Defendants thus attempted to and did harm U.S. citizens in violation of 18 U.S.C. § 1113.

91. Each of the Plaintiffs and members of the class and subclasses have, at a minimum, also been placed in imminent danger in his person, property or business as prohibited by 18 U.S.C. § 2332 and 18 U.S.C. § 2332a.

92. The acts of terrorism at issue are extreme and outrageous and committed to cause extreme physical pain and suffering, and financial loss to Plaintiffs and members of the class and subclasses.

93. Defendants agreed, including by implication or common understanding, to combine with each other, their agents, and other persons to act unlawfully, in the manner set forth in this Complaint and committed overt acts in furtherance of the conspiracy.

94. At all relevant times, Defendants, each and every one of them acting in concert as joint tortfeasors, jointly and severally, knew of this conspiracy and knew and knows, in particular, of the roles of charitable front organizations and their leaders in furtherance of that conspiracy

95. At a minimum, Defendants recklessly disregarded the nature and purposes of the conspiracy.

96. Defendants knowingly and purposefully agreed to perform the acts complained of herein with the knowledge, and for the purpose, that such services facilitate their mutual goals and support what are in effect and thus constitute terrorist activities pursuant to a common scheme to encourage and incentivize acts of terrorism.

97. By conspiring to support, encourage and facilitate violations of 18 U.S.C. § 2332 that have injured each plaintiff’s respective person, property, or business, Defendants, each and every one of them, jointly and severally as joint tortfeasors, are liable pursuant to 18 U.S.C. § 2333 for any and all damages that Plaintiffs and members of the class and subclasses have sustained as a result of such injuries.

98. By encouraging and facilitating violations of and 18 U.S.C. § 2332a that have injured each of the lead Plaintiffs the class and subclasses in their person, property, employment or businesses, and Defendants, each and every one of them, are jointly and severally liable pursuant to 18 U.S.C. § 2333 for any and all damages that Plaintiffs and the members of the class and subclasses have sustained as a result of such illegal acts.

FOURTH CAUSE OF ACTION NEGLIGENCE

99. Plaintiffs and each of the members of the class and subclasses repeat and re-allege each and every allegation of the foregoing paragraphs as if fully set forth herein.

100. Each of the Defendants, each and every one of them acting in concert jointly and severally as joint tortfeasors, owe a duty under the conventions and thus Plaintiffs and members of the class and subclasses outlawing biological weapons to assertively destroy biological weapons as well as to refrain from creating or stockpiling them and to report to the other treaty members all known facts to avoid the spread or release of biological weapons.

101. The inherent act of creating, refining, and/or maintaining supplies of COVID-19 was illegal and banned under the terms of the treaties China has acceded to.

102. Each of the Defendants each and every one of them jointly and severally as joint tortfeasors owed a duty of ordinary care to handle outlawed and illegal biological weapons which are inherently extremely dangerous materials with the care needed to avoid the foreseeable, natural, inevitable deadly consequences of those inherently dangerous materials nearly certain to foreseeably cause loss of human life and severe injuries at a minimum.

103. In violation of the Defendant’s duty of care, the Defendants recklessly, wantonly, willfully created an unreasonable risk of death and dangerous illness toward Plaintiffs and other members of the class and subclasses by failing to maintain banned and unlawful bioweapons with adequate protections and safeguards against their accidental release.

104. In violation of each of the Defendant’s duty of care, acting in concert jointly and severally as joint tortfeasors, each of the Defendants allowed the COVID-19 virus to escape from a laboratory in or near Wuhan, China, which is the Wuhan Institute of Virology, or a sub-component thereof.

105. As a direct and proximate consequence of Defendants’, each and every one of them acting in concert jointly and severally as joint tortfeasors, wanton and irresponsible recklessness and negligence, the public release and spread of COVID- 19 has caused the Plaintiffs and other members of the class and subclasses illness, death, medical expenses, economic disruption and damage, loss of employment and other great losses including but not limited to loss of time for their chosen lives, and social disruption.

FIFTH CAUSE OF ACTION WRONGFUL DEATH

106. Plaintiffs and members of the class and subclasses repeat and re-allege each and every allegation of the foregoing paragraphs as if fully set forth herein.

107. The Defendants, each and every one of them, jointly and severally as joint tortfeasors, are responsible for the deaths of at least 41 U.S. citizens, and mounting, and others in the class from COVID-19 viral infections.

108. By reason of the wrongful conduct of Defendants, Plaintiffs, on behalf of themselves and their family and Plaintiffs’ and members of the class and subclasses, and their decedents, suffered conscious pain, suffering, severe emotional distress and death, and have suffered pecuniary and economic damage, loss of support, loss of nurture, care and guidance, grief, anguish, loss of services, loss of society, and other mental and physical injuries and even death.

SIXTH CAUSE OF ACTION ASSAULT AND BATTERY

109. Plaintiffs and members of the class and subclasses repeat and re-allege each and every allegation of the foregoing paragraphs as if fully set forth herein.

110. The Defendants, each and every one of them, jointly and severally as joint tortfeasors, have caused physical damage and harm to the members of the class and subclasses, particulary in subclass #1 and subclass #2, by physically infected the bodies of the class members.

111. The Defendants, each and every one of them, jointly and severally, have also placed all members of sub-class #1 and sub-class #2 in reasonable fear of imminent harm and/or death.

112. By reason of the wrongful conduct of Defendants, Plaintiffs and members of the class and subclasses suffered conscious pain, suffering, severe emotional distress and the fear of imminent serious bodily injury or death, and death, and have suffered pecuniary and economic damage, loss of support, loss of nurture, care and guidance, grief, anguish, loss of services, loss of society, and other mental and physical injuries.

PRAYER FOR RELIEF

Plaintiffs demand that judgment, after a jury trial, be entered against Defendants each and every one of them, jointly and severally as joint tortfeasors, for compensatory and actual damages because of their demonstrable physical and emotional injury to Plaintiffs and the class and subclases, punitive damages because of Defendants callous and reckless indifference and malicious acts, and attorneys fees, costs, an award in excess of $20 trillion U.S. Dollars and such other relief the Court may deem just and proper.

JURY DEMAND

Plaintiffs respectfully demand a jury trial on all issues so triable.

Dated: March 17, 2020

Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
A Member of this Court’s Bar Freedom Watch, Inc.
2020 Pennsylvania Avenue N.W. Suite 345
Washington, D.C. 20006
(561) 558-5336
leklayman@gmail.com
Attorney for Plaintiffs on behalf of himself and Other Members of the Class and Subclasses

The post Buzz photos, Freedom Watch and others vs. the People’s Republic of China and others appeared first on B&B Associates LLP.

Counsel for the Parties: Shri Devendra Chouhan, learned counsel for the petitioner.

Shri R.S. Chhabra, learned Additional Advocate General along with Shri Mudit Maheshwari, learned counsel for the respondent / State.

Whether approved for reporting: Yes

Law laid: down The writ of habeas corpus is a great constitutional privilege and has been described as security of civil liberty. It provides a remedial procedure in case of illegal detention and in case, illegal detention is proved, the person, who has been detained, is entitled for liberty keeping in view Article 21 of the Constitution of India. He is not only entitled for liberty but is also entitled for compensation. The compensation can be awarded while exercising writ jurisdiction under Article 226 of the Constitution of India.

Significant paragraph numbers: 11 to 25

O R D E R
( Delivered in open Court on this 10th Day of February, 2020)

(S.C SHARMA)
J U D G E

(SHAILENDRA SHUKLA)
J U D G E

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Writ Petition No.26923/2019
Kamlesh S/o Husan v/s The State of Madhya Pradesh & Others Indore, dated 10.02.2020

Per : S.C. Sharma, J:

Shri Devendra Chouhan, learned counsel for the petitioner.

Mr R.S. Chhabra, learned Additional Advocate General along with Shri Mudit Maheshwari, learned counsel for the respondent / State.

The petitioner before this Court, who is Kamlesh S/o Husan, has filed this present petition under article 226 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus.

02. The petitioner’s contention is that his father Husan S/o Ramsingh has been illegally detained by the State who is aged about 68 years. It has been further stated that the detainee is an illiterate tribal. He has been forcibly picked up from his house by the police, produced before the Magistrate and sent to Jail. The petitioner, who is again a tribal is an illiterate person and the moment his father was taken into custody by the police, rushed to the police station and he has informed that his father has been convicted in respect of an offence under Section 302 of the Indian Penal Code and has been sentenced in Sessions Trial No.41/76 for life imprisonment and he has been sent to jail.

03. Learned counsel for the petitioner has stated before this Court as well as averments were made on affidavit in the writ petition that in respect of Sessions Trial No. 41/76 one Husna S/o Ramsingh was a convict who was also known as Bada Husna. He was released on parole and later on died on 10-09-2016. It has been further stated that in place of Husna, father of the petitioner was arrested, produced before the Magistrate and sent to Jail. This Court, as it was alleged that an innocent tribal has been lodged in jail without there being any fault on his part, has issued notices and has directed the State Government to file a reply.

04. The State Government has filed a reply which is duly supported by an affidavit of Shri Manoharsingh Baria, Sub Divisional Officer (Police) and in the affidavit submitted by the Sub Divisional Officer (Police), it has been stated that Husna was convicted in Sessions Trial No. 41/1976. He was sentenced to undergo life imprisonment. He was released on bail and as he did not report back, a warrant of arrest was issued. The warrant of arrest is brought on record as Anenxure-R/1 dated 15-10-2019. He has stated that on the basis of warrant of arrest, the Station House Officer, Bar has arrested Husna and he was produced before the Chief Judicial Magistrate Dhar and the Chief Judicial Magistrate Dhar has issued a jail warrant and he has been sent to jail. Letter dated 18-10-2019 is also been brought on record in support of the aforesaid averments. It has been further stated by the State Government that as the father of the petitioner was sentenced to undergo life imprisonment, he has been sent to Central Jail, Indore to serve the remaining sentence vide order dated 18-10-2019. The Sub Divisional Officer (Police) has submitted a report in the matter stating categorically that the person who has been sent to Jail is Husana who was convicted in Session Trial No. 41/1976.

05. This Court after going through the reply, as the petitioner has stated categorically before this Court that Husan and Husna are two different persons, by an order dated 30-01-2020 has directed the Principal Secretary Home Department to conduct an inquiry based upon the finger prints and other materials to ensure whether an innocent person has been sent to jail or not or it is the father of the petitioner who was convicted in Sessions Trial No. 41/1976. The order passed by this court dated 30-01-2020 reads as under :-

“The petitioner before this Court, who is son of Husan has filed this present petition stating that his father has been illegally detained even though he has not committed any crime nor has been convicted in any criminal case.

The facts of the case, as stated in the writ petition reveal that Husan, father of the present petitioner is aged about 68 years and is a resident of District Dhar. One Husna S/o Ramsingh was convicted for an offence under Section 302 of IPC in S. T. No.41/1976 and he was sent to jail. The father of the present petitioner and the person who was convicted are step brothers. Husna was sent to jail and he was released on parole in the year 1985 and as stated in the writ petition, he expired. Thereafter, as Husna did not report back to the jail, the father of the present petitioner, as he is having a similar name has been arrested and lodged in jail.

Learned counsel for the petitioner has also filed a death certificate in respect of Husna and his contention is that Husna is no more and the father of the petitioner has been sent to jail in place of Husna.

In order to find out whether the correct person is in jail or not, the respondent/State was directed to file a reply. The respondent/State has conducted an enquiry and a reply has been filed in the matter and they have stated that the same person who was convicted is in jail. The reply reveals that some fact finding enquiry was conducted in the matter. The statement of witnesses were recorded and the Investigating Officer has arrived at a conclusion that the same person who was convicted is in jail and the person who has died is actually Husna S/o Kalsingh.

In order to find out whether the same person is in jail or some other person is in jail in respect of Husna, the proper course of action is to conduct an enquiry based upon the fingerprints examination as well as other comparable identifying marks of the two persons Husan and Husna. At the time of FIR is lodged and a man is arrested, his fingerprints are taken by the police authorities and when he is sent to jail, again in jail fingerprints are taken by the jail authorities and therefore, the Principal Secretary, Home Department is directed to conduct an enquiry. The enquiry shall be conducted on the basis of fingerprints of the person who was arrested and convicted in S. T.No.41/1976, the fingerprints obtained for the first time of Husna when he was lodged in jail and the fingerprints of the person who is at present in jail.

As it is a case of alleged illegal detention, the enquiry be concluded within seven days from today by deputing special messengers and a report be submitted before this Court positively on 10.02.2020. The enquiry report shall also include comments upon Annexure-P/1 which is a death certificate in respect of Husna. Incase, the report is not submitted, the Principal Secretary, Home Department shall remain present before this Court on 10.02.2020. Learned Additional Advocate General who is present in Court shall inform this order to the Principal Secretary, Home Department. Noncompliance of this order shall be viewed seriously, as the case involves personal liberty of an individual who is alleging that he is in jail without there being any crime committed on his part. List the matter on 10.02.2020.”

06. An inquiry has been conducted in the matter and based upon the finger prints, a report has come duly signed by the Principal Secretary Home Department and now the Principal Secretary has stated that the person who is in jail is not Husna, meaning thereby, an innocent person is languishing in jail for the last four months. He was sent to jail on 18-10-2019 and till date he is in jail. It is really unfortunate that while filing a return in the present case, an attempt was made by the State of Madhya Pradesh that the person who is in jail is a convict in respect of Session Trial No. 41/1976. It was only the insistence of the petitioner which forced us to direct a thorough inquiry and to obtain a report from the Principal Secretary Home Department based upon finger prints obtained for the first time when Husna was lodged in jail and the finger print of the person, who is in jail at present i.e. Husan. Undisputed fact is that Husna is no more. His death has taken place on 10-09-2016. The report submitted by the Principal Secretary establishes that the person, who is in jail is not Husna, and therefore, as his detention every second is an illegal detention the respondents State is directed to release Husan, forthwith.

07. In the present case, the Sub Divisional Magistrate (Police) has made an incorrect statement on affidavit. A separate case for contempt be registered against the Sub Divisional Magistrate (Police) for making a false statement on affidavit in respect of detention of the father of the petitioner. The contempt be registered separately. Not only this, a contempt case be also registered against all those persons who have made various entries in the Rojnamcha dated 18-10-2019 stating that the father of the petitioner is Husna and he has been arrested.

08. Learned Additional Advocate General has placed reliance upon a judgment delivered in the case of Saurabh Kumar v/s Jailor Koneila Jail and Another reported in (2014) 13 SCC 436. Heavy reliance has been placed upon paragraphs No. 21 and 22 and the same reads as under :-

“21. Two things are evident from the record. Firstly, the accused is involved in a criminal case for which he has been arrested and produced before the Magistrate and remanded to judicial custody, Secondly, the petitioner does not appear to have made any application for grant of bail, even when the remaining accused persons alleged to be absconding and remain to be served. The net result is that the petitioner continues to languish in jail.

22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for offences, cognizance whereof has already been taken by the competent Court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of Habeas Corpus is, in the circumstances, totally mis-placed. Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the Court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody. “

09. Learned Additional Advocate General has stated that the present petition can never be termed as a habeas corpus writ petition.

10. This Court has carefully gone through the aforesaid case and is of the considered opinion that there cannot be a better example than the present case of Habeas Corpus Writ petition.

11. In the entire scheme of Judicial review of administrative action in India, the pivotal position is occupied by Article 226 of the Constitution of India. Article 226 provides an important mechanism for judicial review of administrative action.

12. Article 226 (1) empowers every High Court notwithstanding anything in Article 32, throughout the territories in relating to which the High Court exercises jurisdiction, to issue to any person or authority, including in appropriate cases any government, within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari for the enforcement of Fundamental rights or for any other purpose.

13. The writ of habeas corpus has been described as “a great constitutional privilege” or “the security of civil liberty”. It provides a remedial procedure in case of illegal detention. The principle aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner of detenu [The State of Maharashtra v/s Bhaurao Punjabrao Gawande reported in (2008) 6 SCC 613].

14. The writ of habeas corpus is issued for release of a person, who has been detained unlawfully, or without any legal justification. The writ of habeas corpus is used primarily to secure the release of a person who has been detained unlawfully, or without any legal justification. The great value of the writ of habeas corpus lies in that it enables immediate determination of the right of a person as to his freedom [Ranjit v/s The State of Punjab reported in 1959 Supp (2) SCR 727].

15. The Constitution of India under Article 21 provides that no person can be deprived of his life and personal liberty except according to the procedure established by law.

16. The Hon’ble Supreme Court has held that expression procedure established by law in Article 21 means fair and reasonable procedure [Maneka Gandhi v/s Union of India reported in (1978) 1 SCC 248].

17. In the present case, a person, who has not been convicted in any criminal case nor is in under trial, has been sent to jail by the police. He was caught from his village and produced before the Magistrate stating that he is Husna and the learned Judge, based upon the report filed by the police, in the mechanical manner, sent him to jail.

18. The most unfortunate part is that the State Government while filing a reply initially has defended its illegal action of sending an innocent man, who is aged about 68 years, to jail. No amount of compensation can return the period during which, the father of the petitioner was in jail. The constitutional rights of Husan have been violated with impunity.

19. In the case of Bhim Singh v/s Jammu & Kashmir reported in (1985) 4 SCC 677, the Hon’ble Supreme Court in the case of illegal detention of Bhim Singh has awarded a sum of Rs.50,000/- as cost. The Hon’ble Supreme Court in the case of Bhim Singh referring to Rudal Shah v/s The State of Bihar reported in AIR 1983 SC 1086 and Sebastian M. Hongray v/s Union of India reported in AIR 1984 SC 1026 has observed that it is now established that “we have a right to award monetary compensation by way of exemplary cost or otherwise”. It has also been observed that “When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished by his being set free. In appropriate cases, the jurisdiction to compensate the victim by awarding suitable monetary compensation”.

20. The Hon’ble Supreme Court in catena of judgments has held that compensation can be awarded to the victim by the Court. In the present case it was only after the Principal Secretary, Home was directed to conduct an enquiry, the true picture has been brought before this Court and it has been stated on the affidavit that the person, who is in jail, is not Husna, he is Husan and the person, who was convicted, is no more and in his place some other person has been lodged in jail.

21. The poor tribal was pleading before the police, he was begging for mercy before the police stating that he is not Husna, who is a murder convict, however, his voice was crushed by the police force and forcibly, a mechanical exercise took place by lodging him in jail as a murder convict. The arguments canvassed by the learned Additional Advocate General that the writ of habeas corpus is not maintainable, are misplaced.

22. Resultantly, as a person, who is a poor tribal aged about 68 years, detained illegally by the State Government and all attempts were made to justify his illegal custody as legal custody, no amount of monetary compensation is going to compensate the poor tribal. However, the interest of justice would be sub-served by awarding reasonable compensation and the same shall be paid by the State of Madhya Pradesh, within a period of thirty days, from today. This Court really appreciates the personal efforts done by the Principal Secretary, Home in getting the identification done. Very less time was granted to the Principal Secretary, Home for this purpose. However, he got the identification done by making personal efforts in such a short span of time

23. Accordingly, the present Writ Petition is allowed. State Government shall pay a compensation of Rs.5,00,000/- (Rupees Five Lakh Only) to the father of the petitioner. The same shall be deposited in his Bank account and if he doesn’t have a Bank Account the Collector, Dhar shall personally assist the father of the petitioner, Husan in getting the Bank Account opened and the amount shall be deposited within a period of thirty days in the Bank account of Husan, who is illegally detained by the State.

24. The present case is an example of arresting innocent people without identifying them properly, and therefore, it is directed that in all cases, where an arrest is made, the authorities shall identify the persons so arrested on the basis of Bio-metric as well as other documents in order to ensure their identity, in order to ensure that no innocent person like the father of the present petitioner, Husan go to jail again.

The State Government shall issue necessary instruction to all the authorities and to all police authorities for assuring compliance of the order passed by this Court.

25. This Court hopes and trust that on the basis of mistaken identity of an individual, classic comedy of error shall not be repeated as written by great author, the William Shakespeare.

With the aforesaid, the writ petition stands allowed.

Certified copy, as per rules.

(S.C. SHARMA)
J U D G E

(SHAILENDRA SHUKLA)
J U D G E

Ravi

The post Kamlesh vs. The State of MP & Others appeared first on B&B Associates LLP.

COMMON ORDER
(Order of the Court was made by The Hon’ble Chief Justice)

The petitioners in all the writ petitions are candidates of the Backward Class Category claiming relaxation in age at par with the candidates of Schedule Castes and Schedule Tribes, which stands at 48 years, on the ground that they also belong to the reserved category of candidates and, therefore, any denial of age relaxation to them would amount to invidious discrimination by not extending a benefit which otherwise ought to have been also given to the petitioners herein. Their contention is that this is not based on any rationale and there are no reasons available, more so in view of the fact that the respondents had extended this benefit in the previous notification dated 13.1.2019, but for the same vacancies and for the same selections, the fresh impugned notification dated 12.12.2019 omits the said benefit. The affidavit of the State Government as well as the High Court nowhere discloses any rational basis and there being no intelligible differentia decipherable, the said benefit should be extended to the petitioners herein as they also belong to the weaker section of the Backward Class Category. This they say is in order to allow a concession enabling the reserved category Backward Class candidates to attain the objective of getting suitable representation, inasmuch as relaxation in age is a tool to fulfill the aim of reservation and denying the said benefit, therefore, is against the constitutional mandates for the reserved category.

2. The second argument emphasizes on the fact that the vacancies for which such relaxation is being claimed relate to the year 2013, when the last selections were held. These selections were inordinately delayed for almost six years and commenced in the year 2019. This long lapse of time, therefore, deprived the petitioners of their opportunity to avail the benefits as candidates in the said selection process and, therefore, by placing heavy reliance on a Division Bench judgment of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others, 2014 SCC Online Jhar 73: (2014) 2 AIR Jhar R 638, it is urged that in order to remedy this unjust deprivation, a relaxation over and above the maximum age should be otherwise prescribed to enable the petitioners to undertake the fresh examinations and selection process of District Judge (Entry Level).

3. It is submitted that the petitioners had a right to apply and appear in the recruitment process, which rights have been taken away in spite of the fact that they were eligible, but a delay and then the subsequent change in the stand of the respondents has brought about this unjust situation.

4. It is further submitted that age relaxation for recruitment to the other posts of the Subordinate Judiciary is available to the Backward Class candidates, but there is no rationale behind non providing of this relaxation to the candidates who are seeking to participate in the selection process for the post of the District Judge (Entry Level). In the absence of any distinctive rational for the said purpose, there cannot be any justification for not providing any such relaxation to the petitioners.

5. It is also submitted that relaxation in marks has been given, but there is no reason as to why relaxation in age cannot be afforded to the petitioners in order to fulfill the object of reservation.

6. One more fact deserves to be taken notice of, that is against the notification issued on 13.1.2019, no single candidate could be selected and, therefore, in this peculiar situation also a fresh opportunity by providing relaxation, more particularly in the case of reserved category candidates, should be extended.

7. One of the other arguments that has been advanced is that a number of vacancies for which the selections were to be held arose prior to the amendment which is under challenge and the eligibility of age should always be construed with reference to the year of vacancy. Learned counsel advancing this submission, apart from relying on other judgments to which reference shall be made herein after, has heavily relied on a Division Bench judgment of the Rajasthan High Court in the case of Prakash Chand and others v. The State of Rajasthan and another, reported in 1990 (2) WLN 317.

8. Replying to the said submissions, learned counsel for the State has relied on the counter affidavit filed in one of the writ petitions, namely W.P.No.35906 of 2019, to contend that the Apex Court in All India Judges’ Association and others v. Union of India, reported in (2002) 4 SCC 247, in paragraphs (37) and (38), had accepted the Shetty Commission report in relation to age relaxation, which does not contain any separate age relaxation for the Backward Classes. To the contrary, the issue was very much discussed by the Supreme Court vis-a-vis in particular to the State of Tamil Nadu, where such recommendations had been made, but the Apex Court while accepting the report of the Shetty Commission did not provide any such benefit of relaxation in age to the Backward Class category. Learned Government Pleader, therefore, contends that such relaxation cannot be read beyond the said judgment.

9. It is further submitted that the issue of any delay in holding of the selections does not per se extend any such right or confer any benefit on the petitioners, inasmuch as such benefits were never extended in the past under any rule that was for the time being in force to the Backward Class community. Secondly, the posts are being filled up keeping in view the constant monitoring and directions issued by the Apex Court in the case of Malik Mazhar Sultan v. U.P. Public Service Commission and others, in Civil Appeal No.1867 of 2006, where in relation to the State of Tamil Nadu as well as other States, the following orders were passed on 6.11.2019:
“… The note of learned Amicus Curiae would go to show that there are 30 posts in the District Judge which are to be filled up against the direct recruitment quota. It appears that the said vacancies are yet to be notified. The High Court is requested to notify the same within two weeks and thereafter, complete the process of selection and appointment as per the schedule laid down by this Court in Malik Mazhar Sultan case.”

10. It is, therefore, urged that this issue of any delay now cannot be entertained as the answering respondents are under a mandate of the Supreme Court to complete the selection process. No directions have been given by the Apex Court to grant any relaxation in age and even otherwise, any such clarification in respect of the said directives can only be obtained from the Apex Court keeping in view the directions contained in paragraph (40) of the judgment in the case of All India Judges’ Association and others v. Union of India (supra).

11. It is also the contention of the Government that in the absence of any such rules, no such benefit can be extended, nor is there any power of relaxation so as to extend such benefit

12. He has further supplemented the arguments advanced by the learned counsel for the High Court by relying on two judgments of this Court in the case of R.Srinivasan v. The State of Tamil Nadu and others, [W.P.No.14437 of 2013, decided on 4.7.2013], more particularly paragraph (8), as followed by another Division Bench in the case of S.Manikandasamy v. The Registrar General and another [W.P. (MD) No.10624 of 2013, decided on 16.7.2013], where a similar challenge raised was rejected by the High Court.

13. Mr.Vijay, learned counsel for the High Court had advanced his submissions contending that equality in opportunity in matters of employment does not mean equality or uniformity in all respects. It is urged that there is no manifest arbitrariness demonstrated by the petitioners and a mere difference in age relaxation between two different classes of the reserved category does not amount to any invidious or hostile discrimination.

14. He further submits that the judgment of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra), as relied on by the learned counsel for the petitioners, does not come to their aid, for which reliance has been placed on other judgments to be detailed herein after.

15. His further contention is that once a rule is in place, the same cannot by any administrative decision be upturned, nor can it be interfered with by way of a judicial intervention, inasmuch as there is neither any infirmity or constitutional invalidity so as to infer any deficiency in the Rule.

16. He has then contended that the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995, as it then stood, prescribed the maximum age of 48 years on the 1st July of the year in which the selection/appointment was to be made. There was no separate prescription of relaxation, nor was there a minimum age prescribed for a candidate. The said Rules came to be repealed and were substituted by the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, where the said prescription of age was redefined by providing that a candidate must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year in which the selection/appointment is made. This change in the Rule indicated that the maximum age of 48 years was by way of a relaxation only to SC/ST candidates, whereas for all other categories it was 45 years only. It is contended by the learned counsel that this was in conformity with the report of the Shetty Commission, as accepted by the Apex Court in All India Judges’ Association and others v. Union of India (supra).

17. He then submits that the said Rules came to be amended vide notification dated 24.11.2017 and Clause (3) in the schedule to Rule 5 of the aforesaid Rules, for the first time introduced the minimum age to be possessed by a candidate, which is 35 years. The rest of the provision of the maximum age of 48 years in the case of SC/ST and 45 years in the case of others as on the 1st July of the year of recruitment was kept intact.

18. Learned counsel for the High Court contends that on 13.1.2019 an erroneous notification containing an inadvertent error was issued, where the age of 48 years prescribed as the maximum age for SC/ST category candidates also indicated the same age for the Backward Class category candidates. It is urged that this prescription was erroneous, being not in accordance with Rules, 2007 but after the preliminary examinations were held, since no candidates could qualify in the examinations, the said process was terminated, whereafter the notification dated 12.12.2019 was issued in compliance of the directions of the Apex Court in the case of Malik Mazhar Sultan v. U.P. Public Service Commission and others (supra), where the correct prescription was again indicated with regard to relaxation of age up to the age of 48 years only in the case of SC/ST candidates and for all other candidates, the maximum age prescribed was 45 years, that was continuing from before.

19. He, therefore, submits that no vested right had accrued either under the old Rules or even under the new Rules and any such prescription in an erroneous notification does not create any right or a legitimate expectation in favour of the petitioners so as to extend the benefits, that too even through a judicial intervention in the present proceedings.

20. He contends that the decisions relied on by the learned counsel for the petitioners do not come to their aid and he has cited the judgments in his favour to substantiate his submissions on the ground that a long pendency of selection by itself will not extend any such benefit and he has attempted to distinguish the judgment of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) relied on by the learned counsel for the petitioners by placing reliance on the judgment of the Division Bench of the Delhi High Court in Gaurav Mehta and others v. High Court of Delhi, reported in MANU/DE/0743/2014 : 2014 Supreme (Del) 841.

21. He also contends that the Division Bench judgment of the Rajasthan High Court in Prakash Chand and others v. The State of Rajasthan and another (supra) was delivered on the strength of the Rules of relaxation that were available extending automatic entitlement to a candidate to appear in the next examinations in the event of any non holding of examinations in any particular year. The ratio thereof does not apply in the instant case where no similar rules exist.

22. In rejoinder, learned Senior Counsel, Mr.Om Prakash, inviting the attention of the Court to the judgment in the case of Nawal Kishore Mishra and others v. High Court of Judicature of Allahabad and others, reported in (2015) 5 SCC 479, has urged that while considering the issue of reservation, the Apex Court had ruled that the High Court being empowered to act under Articles 233, 234 and 235 of the Constitution of India, and being a high constitutional functionary, it can provide for a scheme of reservation governing all State Services, including Judiciary. He submits that the Apex Court interpreted that the Rules framed under Article 309 of the Constitution of India and the provisions of Article 245 would have to be read subject to Articles 233 and 234 of the Constitution of India and, accordingly, the High Court can extend the benefit of such relaxation as is being claimed by the petitioners, for which there is neither any legal nor constitutional bar.

23. It is his submission that in the background aforesaid, on both counts, namely that of the rights available to the petitioners in lieu of the vacancies that had come into existence long before amendments and in view of the delayed selection process, the petitioners are entitled to the extension of benefit of relaxation.

24. Learned counsel for the High Court has supplemented his submissions by contending that the Apex Court has answered these questions against the petitioners in the case of Hirandra Kumar v. High Court of Judicature at Allahabad and others, reported in 2019 (2) SCALE 752. He has also cited the Division Bench judgment in the case of C.Ramesh Kumar v. The Registrar General and others [W.P.No.18020 of 2013, decided on 25.7.2013] to contend that the upper age limit as prescribed being within the realm of the rule making authority, no arbitrariness can be attributed if a particular age has been fixed and the reasonableness or unreasonableness thereof is beyond the pale of judicial scrutiny.

25. The pleadings have been exchanged and after the filing of the counter affidavit a prayer for grant of an interim order was declined by us calling upon the parties to complete their pleadings and had fixed 4.2.2020 to proceed in the matter. Against this order declining interim relief on 13.1.2020, one of the petitioners approached the Apex Court by filing Special Leave to Appeal (c) No.2140 of 2020, which was disposed of by the following order:
“The petitioner is before this Court assailing Order dated 13.01.2020 in W.M.P. NO.113/2020 in W.P.NO.95/2020 whereby the Division Bench of the High Court of Judicature at Madras has declined to permit the petitioner to appear for examination by relaxing the age provided in Notification NO.2 dated 12.12.2019. made out and the High Court itself has indicated the next date instead of allowing the matter to linger on with interim orders, we request the High Court to take up the matter and dispose of the same on the date on which the High Court has itself fixed the writ petition(s) for consideration or within a period of three weeks thereafter. Further the apprehension of learned senior counsel appearing for the petitioner about the last date for application would stand addressed since if ultimately the petitioner succeeds, the High Court would also take note of granting the time to file/submit the application of the petitioner notwithstanding the fact that the last date for the same would have elapsed. With the above observation, the special leave petition is disposed of. Pending applications, if any, shall also stand disposed of.”

26. It is in this background that we have heard the arguments on behalf of the respective parties, where the learned counsel have consumed almost the entire day of the Court.

27. The contest is on the premise that since the petitioners belong to the reserved category of candidates, they are entitled to a similar treatment in the matter of age relaxation and to deny them such a benefit is discriminatory and violative of Article 14 of the Constitution of India. This argument has been advanced in the backdrop that neither the Shetty Commission Report, nor All India Judges’ Association and others v. Union of India (supra), nor any Rules deny such benefit. It is further submitted that in the cadre of lower judiciary, such benefits of relaxation in age at par with the SC/ST candidates has been given to the Backward Class Category candidates as well, and hence there is no rationality in denying the same benefits at the District Judge (Entry Level). Reliance, as indicated above, is placed on the decision in the case of Nawal Kishore Mishra and others v. High Court of Judicature of Allahabad and others (supra), contending that there is no dearth of power and the High Court itself can exercise this authority to give effect to an opportunity of employment to the reserved category candidates and secondly, such benefit had been extended through the notification dated 13.1.2019, which is being described by the High Court as an inadvertent error.

28. To supplement the arguments, as noted above, strong reliance was placed on the Division Bench judgments of the Jharkhand High Court in the cases of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) and Sanjiv Kumar Sahay v. State of Jharkhand, reported in 2008 (2) JLJR 543.

29. At the outset, we may clarify that the issue of reservation cannot be mixed up with the question of relaxation of age, inasmuch as reservation is provided in terms of Article 16 of the Constitution of India to enable the fulfillment of the constitutional goal of equitable representation of the oppressed classes. Reservation in matters of employment is a constitutional mandate which is a policy or a concept for keeping a fixed number of jobs protected, and to the exclusion of others, for a certain class of people. It is to carve out a determined number or a percentage out of the whole by setting it aside and limiting its utilization for a particular class, caste or community, that is not to be given to or meant for others. Relaxation is an act or exercise of authority that renders a rule or some form of control or prescription, less strict or severe. It is an act that brings about some sort of partial remission by lessening the stiffness or intensity by bending it to a certain extent. The former, in terms of the Indian Constitution and in the present context partakes the nature of a fundamental constitutional right. The latter is a prescription of statutory procedure to meet a certain exigency at the option of the authority to exercise such power. The power to relax is not a fundamental right of reservation to be enforced under Part III of the Indian Constitution. It is in cases of hostile discrimination or manifest arbitrariness that can a challenge be raised upon exercise of such power. Reservation and relaxation have therefore to be understood as two separate concepts and hence, relaxation is not a synonym for reservation. It is nobody’s case that reservation has not been granted to the Backward Classes, to the contrary the notification and the impugned advertisement dated 12.12.2019 clearly specify the number of vacancies that are reserved for these category of candidates. The issue, therefore, is only of an additional relaxation in the upper age limit being granted to the reserved category candidates.

30. In this regard, we may refer to the judgment in the case of Ami Lal Bhat v. State of Rajasthan and others, reported in (1997) 6 SCC 614, which has also been referred to by the Division bench of the Jharkhand High Court decision in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra). In our understanding the said judgment in the case of Ami Lal Bhat v. State of Rajasthan and others (supra) has to be understood in the context in which it was decided. The issue had arisen on account of the prescription of a cut-off date coupled with a situation where selections take an uncertain time thereby resulting in a disadvantage to a candidate who becomes ineligible at a later point of time. The Apex Court held that in the first place while construing the validity of any given rule, the same cannot be a question of reasonableness or unreasonableness of the Rule by looking at border-line cases. However, the Apex Court further went on to hold in paragraph (11) as follows:

“11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.”

31. It is the same paragraph which has been relied upon by the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra), but, in our opinion, applying the same principles on the facts of the present case, the first thing that we find is that there is no mala fide alleged; secondly, there was no complaint about delay in the holding of the examinations before the previous notification dated 13.1.2019. The contention of the petitioners that the benefit of relaxation in the upper age limit up to 48 years had been advertised for the Backward Classes in the notification dated 13.1.2019, was clearly contrary to the existing rules that does not provide any relaxation in the upper age limit to Backward Classes. An advertisement contrary to rules cannot create a vested right or even give rise to a legitimate expectation beyond the rules. Paragraph 16 of the counter affidavit of the High Court is extracted hereinunder:
“16. The contention of the petitioner is that in the previous Notification for recruitment to the post of District Judge published on 13.1.2019 vide Notification No.1 of 2019, the Appointing Authority has prescribed the maximum age as 48 years for all reserved category, whereas in the impugned Notification the maximum age had been reduced to 45 years, which is per se arbitrary and unreasonable. The maximum age prescribed under earlier Notification dated 13.1.2019 is not in consonance with the age limit prescribed under the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007. The Appointing Authority has inadvertently prescribed the maximum age as 48 for reserved categories and the petitioner cannot take any advantage on the mistake crept in the previous recruitment Notification. The mistake committed in the previous recruitment in regard to fixation of maximum age cannot be taken as precedent and the same would not confer any civil or constitutional right to the petitioner to seek for age relaxation contrary to the Service Rules.”

32. There was no relaxation in the upper age limit extended to the other Backward Class category candidates, for which we find a strong reason, namely the recommendations of the Shetty Commission, which after considering the proposals of other States, including that of the Tamil Nadu Government, had made a final recommendation of extending the benefit of relaxation in age up to 48 years only to the SC/ST candidates. The relevant part of the said recommendations relating to age limit are extracted herein under.

“10.81. Here again, we find lot of variance amongst the High Courts. It ranges from 35 to 45 years and 35 to 48 years.

10.82. The grievance of the promotees is that younger elements if inducted into the cadre would impair their promotional chances. There cannot be any doubt in this regard. If candidates at a relatively younger age are taken into service, they would remain longer and march over the promotees for better avenues. The grievance of the service judges in this regard deserves to be removed.

10.83. Some States/High Courts have pleaded for the minimum age of 40. The Judicial Officers€ Associations have made similar submissions. It has to be borne in mind that the direct recruits must have sufficient span of service in order to enable them to make some mark and look for career progress.

10.84. Secondly, at the age of 40, people begin to “settle down” with stable commitments. They would make commitment to their family, career, friends or some special interest. When once they make firm commitment in their life, they are unlikely to switch over to service, which entails periodical transfer. They may wait for an opportunity for elevation to High Court if they are really busy practitioners.

10.85. Thirdly, at the age of 40, we may get persons who are mostly unsuccessful at the Bar and the very purpose of direct recruitment of young and brilliant advocates may be defeated. sometimes selected as Civil Judge (Junior Division). By seven years of practice, one will not get the required maturity to handle Sessions cases. The life and liberty of the persons are at stake in Sessions cases. cadre at the age of 22 has to render service for 16 years to become Secretary to the State Government, which is an equivalent post of the District Judge. That means, he would be eligible for the post of Secretary to Government at the age of 38 at the minimum, and 46 at the maximum, depending upon the age at which he has entered the service. With regard to the upper age limit, it seems to us that it should not be more than 45, with relaxation of a few years for SC and ST candidates. Persons beyond the age of 45 will have a short span of service with no scope for any further movement in the judicial career. Such persons would lack enthusiasm for the work and would be a liability than asset to the service.

10.91. Our recommendation about the age range between 35 and 45 is in consonance with the prevailing pattern followed by some States as we have seen earlier. Besides, the High Courts of Andhra Pradesh, Bombay, Delhi, Gauhati, Himachal Pradesh, Punjab & Haryana and Rajasthan have also expressed the view that 35 years should be the minimum and 45 years the maximum limits for direct recruitment of District Judges.

10.92. It may also be stated that a study of job satisfaction as reported by Robertson and Smith (1985) showed that satisfaction with work tended to increase with age, but that there is a dip in satisfaction in the 40-50 years age group, suggesting that this group is the most difficult to motivate. (See: A Handbook of Personnel Management Practice by Michael Armstrong, p.273).

10.93. For the aforesaid, we recommend that the candidates for direct recruitment to the cadre of District Judges should be between 35 and 45 years and the upper age may be relaxed by 3 years for SC/ST candidates.

10.94. The same age limit must be applicable to service judges also as and when they are made eligible for such direct recruitment.”

33. The said recommendation has found acceptance by the Apex Court in the All India Judges’ Association and others v. Union of India (supra) in paragraph 37, which is extracted herein under:

“37. Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted.”

34. Even though the issue of any comparative relaxation in age between Backward Class category and SC/ST category was not a specific issue raised in the said case, namely giving of identical relaxation to the other Backward Class categories, yet this issue has been finalized and has attained finality with the acceptance of the Shetty Commission report that has referred to relaxations to Backward Classes and SC/ST’s in paragraph 10.90 quoted above. The judgment in All India Judges’ Association and others v. Union of India (supra) is, therefore, a conscious decision on the Shetty Commission Report, which even having taken notice of relaxations being available to the other Backward Classes in I.A.S. recruitments, did not make any recommendations for such relaxation in upper age limit to Backward Classes in the judicial services. We are, therefore, bound by the same and we may further quote paragraph (40) of the judgment, which rules that any such clarification can only be sought from the Apex Court. Paragraph (40) is extracted herein under:
“40. Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court. The proceedings, if any, for implementation of the directions given in this judgment shall be filed only in this Court and no other court shall entertain them.”

35. The aforesaid aspects either of the Shetty Commission or its acceptance by the Apex Court have nowhere been even referred to, considered or decided by the Division bench of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) and other such similar cases. We may point out that the Delhi High Court in the case of Gaurav Mehta and others v. High Court of Delhi (supra) had, therefore, declined to follow the line of reasoning given in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra).

36. The counter affidavit filed on behalf of the High Court categorically explains this entire position also placing reliance on the other judgments that have been cited at the bar. Learned counsel for the High Court has also relied on the judgment in the case of Jamaluddin v. State of Jammu and Kashmir and others, reported in AIR 2012 SC 291, where also it has been held that age relaxation cannot be brought about by way of a judicial interpretation, unless the rules make a provision in relation thereto.

37. Additionally, it is an admitted position that the SC/ST category candidates are placed on a different scale as compared to the other Backward Classes. This is supported by the constitutional scheme by making separate provisions for both these classes. Thus, the learned counsel for the High Court is right in his submission that the equality clause would not be attracted so as to infer uniformity in rules of relaxation. Conversely, a mere different parameter of age relaxation cannot be a ground for challenging its validity when they are persons of different classes. It is for this reason that the Shetty Commission Report as well as the All India Judges’ Association and others v. Union of India (supra) both have taken notice of the fact of age relaxation and have placed the SC/ST in one category, whereas they have placed all others in the same category for the purpose of age relaxation. It is, therefore, not open for this Court now to extend any such benefit or strike down the rule or read it down or interpret it contrary to what has been said above.

38. There is yet another argument which has been advanced, namely that other High Courts have extended such benefits. If such benefits have been extended by other High Courts, the same cannot be said to be discriminatory as against the petitioners, inasmuch as if they are entitled to any such benefit in other States, the same does not render the present Rules invalid. Even otherwise, under the federal structure of the Judiciary, there is no such All India Judicial Services in place and each State having its own independent judicial organization as envisaged under the Constitution, each of the States and its High Court having exercise of autonomy over such services are empowered to either extend such benefits or otherwise make some other provision of relaxation which cannot be pressed into service for an argument of invidious discrimination for providing relaxation in upper age limits.

39. We may further point out that the learned counsel for the High Court has rightly contended that the prescription of maximum age either category wise or otherwise is a matter of prescription by the employer and in judicial services this issue has been settled by the Apex Court in the case of Hirandra Kumar v. High Court of Judicature at Allahabad and others (supra).

40. The next argument that has been advanced on the strength of the judgment in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) is that on account of the delay in appointments, such relaxation should be made available to the petitioners. Having considered the same, we are of the opinion that a legitimate expectation can only be pressed into as an argument, provided there is an existing right. The right should be legally sustainable and should be an accrued one. A mere chance or an expectancy of appearing in a recruitment process cannot by itself be a right unless it is shown that it violates Article 14 of the Constitution of India or any other constitutional provision or legal provision. Reference be had to paragraphs (20) to (22) of the judgment in the case of J.S.Yadav v. State of U.P. and others, reported in (2011) 6 SCC 570 extracted herein under:
20. “The word ‘vested’ is defined in Black’s Law Dictionary (6th Edn.) at p. 1563, as: Vested; fixed; accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.’ Rights are ‘vested’ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster’s Comprehensive Dictionary (International Edn.) at p. 1397, ‘vested’ is defined as: (Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests.’” (See Mosammat Bibi Sayeeda and others. etc. v. State of Bihar, AIR 1996 SC 1936)

21. The word “vest” is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word “vest” has also acquired a meaning as “an absolute or indefeasible right”. It had a “legitimate” or “settled expectation” to obtain right to enjoy the property, etc. Such “settled expectation” can be rendered impossible of fulfilment due to change in law by the legislature. Besides this, such a “settled expectation” or the so-called “vested right” cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. (Vide Howrah Municipal Corpn. v. Ganges Rope Co. Ltd., (2004) 1 SCC 663)

22. Thus, “vested right” is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provides for such a course.”

41. The contention of the petitioners, that had the examinations been held, and even now are being held with regard to the vacancies then existing, therefore they should be treated to be eligible would amount to extending their eligibility age contrary to the Rules. On account of becoming overage or otherwise such a deprivation does not violate any fundamental right or otherwise a legal right. No such ratio has been laid down in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) and to the contrary, while considering the impact of the said judgment, a Division Bench of the Gujarat High Court in the case of Dushyantbhai Chandrakantbhai Shah v. High Court of Gujarat and others, reported in MANU/GJ/2118/2017 has come to the conclusion that the judgment of the Apex Court in the case of Ami Lal Bhat v. State of Rajasthan and others (supra) lays down the correct position of law. The said judgment of the Gujarat High Court has been upheld by the Apex Court, where a Special Leave to Appeal filed against the same, being Special Leave to Appeal (C) No.2878 of 2017 was dismissed on 11.8.2017.

42. In the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra), there was a gap of more than five years between the advertisement earlier issued and when it was next issued in the year 2013. In the instant case, it is correct that after the 2013 selections, the advertisement was first issued in January, 2019. As noted above, no challenge was raised after 2013 to 2019 on the issue of absence of grant of relaxation in the upper age limit to the backward class candidates. The challenge raised in 2013 failed as is evident from the judgment in R.Srinivasan v. The State of Tamil Nadu and others (supra), followed subsequently by another Division Bench in S.Manikandasamy v. The Registrar General and another (supra). The error in the advertisement dated 13.1.2019 has already been dealt with herein above.

43. In the above circumstances, when no such relaxation was either contemplated by the Shetty Commission or even indicated in the All India Judges’ Association and others v. Union of India (supra) and for all the reasons stated herein above, we do not find any of the judgments relied on by the learned counsel for the petitioners coming to their aid for extending the benefit of relaxation in age to the Backward Class category candidates at par with the SC/ST candidates. Paragraph (40) of the aforesaid judgment quoted above also restricts our interference in the matter.

44. It is not that the power to relax cannot be inferred, as, the Constitution empowers the High Court under Articles 233 and 235 of the Constitution to exercise such authority by prescribing a rule. The judgment in the case of All India Judges’ Association and others v. Union of India (supra) also while accepting the Shetty Commission report does not debar the grant of further relaxation up to 48 years, but the recital of 48 years for SC/ST and 45 years for others is a valid indicator of prescription. It is not the case of the petitioners that no candidates of the Backward Classes are unable to apply or their numbers are so less on account of the prescription of 45 years upper age limit that some justification for relaxation in age can be culled out.

45. So far as the issue relating to the vacancies being of the earlier years is concerned, the petitioners had only a chance of applying and it is by now well settled that even selection does not give a right of appointment. Thus, a loss of opportunity on account of delay in the holding of examinations by itself, without there being any mala fides attributed, cannot be aground to reinterpret or introduce any further relaxation in age to the benefit of the petitioners. For all the reasons herein above, we do not find any merit in these writ petitions, which are accordingly dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

(A.P.S., CJ.) (S.P., J.)
06.02.2020

Index: Yes
sasi

To:

1. The Additional Chief Secretary to the Government of Tamil Nadu, Secretariat, Fort St. George, Chennai – 600 009.

2. The Principal Secretary to Government (FAC), Public (Special.A) Department, Fort St. George, Chennai – 600 009.

3. The Registrar General, High Court Madras, Chennai – 600 104.

4. The Registrar – Recruitment, High Court, Madras – 600 104.

THE HON’BLE CHIEF JUSTICE
AND
SUBRAMONIUM PRASAD, J.
(sasi)

The post N.S.Sivakumar vs The Additional Chief Secretary appeared first on B&B Associates LLP.

WP(Crl) no.251/2019
CrlM nos.1123/2019; 1063/2019
1060/2019; 767/2019; 728/2019
Reserved on: 03.02.2020
Pronounced on: 07.02.2020

Mian Abdul Qayoom …….Petitioner

Through: Mr Z. A. Shah, Senior Advocate
with Mr Manzoor A. Dar, Advocate

Versus

State of J&K and others ……Respondent(s)

Through: Mr B.A.Dar, Sr. AAG with
Mr Shah Amir, AAG for respondents 1,3&5
Mr T. M. Shamsi, ASGI for respondents 4&6

CORAM: HON’BLE MR JUSTICE TASHI RABSTAN, JUDGE

JUDGEMENT

1. District Magistrate, Srinagar – respondent no.2 herein (for brevity “detaining authority”), has, by Order no.DMS/PSA/105/2019 dated 7th August 2019, placed Mr Miyan Abdul Qayoom son of Miyan Abdul Rehman resident of Bulbulbagh, District Srinagar, under preventive detention, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It is this order, of which petitioner is aggrieved and throws challenge thereto on the grounds tailored in petition on hand.

2. The case set up in instant petition is that detenu is a renowned practising senior Advocate in High Court of J&K for last forty years and that he is also President of J&K High Court Bar Association, Srinagar. It is submission of petitioner that detenu had been earlier placed under preventive detention in the year 2010 and after incarceration in various Sub Jails of J&K, the detention order was withdrawn. The detenu is said to have been arrested during intervening night of 4th/5th August 2019 and lodged in Police Post Rangreth for two days and after that he was shifted to Central Jail, Srinagar. Upon having ken thereabout, petition, being WP(Crl) no.248/2019, was filed by General Secretary of J&K High Court Bar Association, Srinagar, in which notice was issued upon respondents, asking them to disclose the authority under which detenu was jailed. The said petition, however, was withdrawn by petitioner with a liberty to file a fresh as petitioner had reliably learnt that detenu was likely to be placed under preventive detention. It is averred that close relations of detenu went to Central Jail, Srinagar, to enquire about his presence, where they were intimated that detenu had been shifted from Central Jail, Srinagar. It is maintained by petitioner that a news item, circulated by news channels, disclosed that nearly 20 people from Central Jail, Srinagar, had been shifted and lodged in Central Jail, Agra and finally, they came to know about lodgement of detenu in Central Jail, Agra under preventive detention. It is claimed that close relations of detenu managed to get the order of detention, communication dated 7th August 2019 and grounds of detention, on 17th August 2019. The detenu is said to be suffering from various ailments.

2.1. It is also averred in writ petition that respondent no.2 has issued impugned order of detention on the basis of a communication of respondent no.3 dated 6th August 2019 along with material produced before him with connecting documents, but the said communication was not provided to detenu nor connected documents, which has deprived him of making an effective representation before detaining authority or government. The material relied upon by detaining authority is stated to have not been furnished to detenu.

2.2. It is maintained that grounds of detention are replica of dossier inasmuch as grounds of detention have not been formulated by respondent no.2 and that order of detention and grounds of detention have been signed by respondent no.2 without application of mind and without going through grounds of detention.

2.3. Further submission of petitioner is that activities mentioned in grounds of detention pertain to the year 2008 and 2010 and that respondent no.2 has relied upon FIRs registered in the year 2008 and 2010 for detaining detenu, for which detenu had already been detained in the year 2010 and that such material cannot be relied upon for repeating the order of detention. Petitioner states that a mention is made about his activities after death of Burhan Wani in the year 2016, which fact is not correct and that it is a false allegation levelled against detenu inasmuch as these incidents, which have been relied upon by respondent no.2, for passing impugned order of detention are vague, without any material to support the same. The detaining authority is said to have not even mentioned as to what has happened to FIRs relied upon by detaining authority in grounds of detention and as to whether FIRs have been concluded and put to the Court for trial by producing Challan or whether investigation has been concluded or completed by police stations concerned, in these FIRs even after nine years, which would mean that FIRs itself have become stale, so far as connecting detenu with today’s situation is concerned.

2.4. It is stated that respondent no.2 has nether shown awareness of the fact that as to whether detenu has been granted bail in these FIRs, particularly in FIR no.74/2008 and FIR no.27/2010, in which, one of the offences is 13 ULA(P) Act nor respondent no.2 has reflected in grounds of detention that as to whether detenu has applied for bail, which confirms non-application of mind on the part of respondent no.2. Even if previous grounds are mentioned, in that eventuality fresh grounds cannot be considered for confirming or putting the person under detention.

2.5. It is claimed that what were decisions taken by Union Government on 5th August 2019, have not been mentioned by detaining authority and what was activity between 5th August 2019 to 7th August 2019, which influenced mind of detaining authority or police that detenu would instigate general public to resort to violence, have not been mentioned by detaining authority because such activities would thereafter become a ground for detaining the detenu under preventive detention, when fact of the matter is that detenu was already detained during intervening night of 4th/5th August 2019.

2.6. It is also submitted that what were sufficient compelling reasons for putting detenu under prevention detention, have not been spelled out by detaining authority either in grounds of detention or in order of detention and even grounds of detention do not mention that which are the activities that led to agitation and on what occasions it endangered public life and property and disturbed peace and tranquillity of the State. Such record has not been provided to detenu.

2.7. It is claimed that respondent no.2 has informed detenu about order of detention dated 7th August 2019, through letter dated 7th August 2019, and has asked him to inform Home Department as to whether he would like to be heard in person by Advisory Board and he has also asked him to make a representation against order of detention to detaining authority or to Government, if he so desires. However, respondent no.2 has not informed detenu as to within how much period of time, he has to inform Home Department about his being heard by Advisory Board or as to within how much period of time he has to make a representation against order of detention to detaining authority or Government.

2.8. Grounds of detention, according to petitioner, are vague, indefinite, uncertain and baseless as also ambiguous and lack in material particulars and essential details, which has rendered detenu unable to make an effective representation against his detention to appropriate authority.

3. Reply affidavit has been filed by respondent. They insist that detenu came to be detained under the provisions of J&K Public Safety Act, 1978, (for brevity “Act of 1978”) validly and legally and that all statutory requirements and Constitutional guarantees have been fulfilled and complied with by detaining authority. It is also insisted that grounds of detention, order of detention as well as the material relied upon by detaining authority have been furnished to detenu well within statutory period provided under Section 13 of the Act of 1978. The warrant of detention was executed by Executing Officer, namely, Inspector Parvaiz Ahmad no.7833/NG, SHO P/S Khanyar and detenu was handed over to S. P. Central Jail, Srinagar. The contents of detention order/warrant and grounds of detention are stated to have been read over and explained to detenu. Grounds of detention, it is submitted, have been framed by detaining authority with complete application of mind after carefully examining the material/record furnished to it by sponsoring agency and only after deriving subjective satisfaction. It is averred that use of expression “subject” in grounds of detention as similar to that of expression “subject” used in dossier will not render the order of detention ineffective and cannot be said to be suffering from vice of non-application of mind by detaining authority. Respondents maintain that in terms of Section 10-A of the Act, a detention order passed under Section 8, which has been made on two or more grounds, shall be deemed to have been made separately on each of such grounds and shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague. Respondents claim that detenu is a practising lawyer in Srinagar having held position of President of J&K High Court, Bar Association Srinagar, and over a period of time, he has emerged as one of the most staunch advocate of secessionist ideology propagating in public through his speeches and appeals and that detenu has been involved in various criminal cases inasmuch as detenu has been using platform of J&K Bar Association for promoting and advocating his secessionist ideology and has been sponsoring strikes while instigating general public for indulging in activities prejudicial to maintenance of public order.

3.1. Respondents also maintain in their Reply Affidavit that detenu has been actively involved in furtherance of his secessionist ideology in the Valley, particularly during agitation of 2008 as also in the agitation at the time of killing of terrorist, Burhan Wani, in 2016, which agitation led to highest magnitude of violence in the Valley, leaving many people dead. Since detenu have had a long history of promoting, propagating and advocating secessionist ideology inasmuch as instigating public wilfully and unlawfully for violence against the government established under law and its functionaries, therefore, detaining authority on careful examination of the entire material furnished to it by all concerned, deemed it expedient, imperative and appropriate to detain detenu under the provisions of the Act of 1978 in terms of order dated 7th August 2019, in that there has been every likelihood and apprehension after Government of India passed law regarding abrogation of Article 370 read with Article 35(A) of the Constitution of India. The detenu in view of his secessionist ideology and on account of his past unlawful activities, having been found prejudicial to maintenance of public order, would instigate general public to resort to violence, which would in the process disturb maintenance of public order. Hence detaining authority found it necessary and imperative to invoke relevant provisions of the Act of 1978 and subsequently detain the detenu in order to preclude him from indulging in activities which would be prejudicial to maintenance of public order.

3.2. It is also insisted that power of preventive detention is a precautionary power exercised in reasonable anticipation and it may or may not relate to an offence. The basis of detention is satisfaction of Executive on a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and prevent him from doing the same. It is claimed that detenu has been staunch advocate of secessionist ideology instigating public through his speeches, hartal calls and physical participation in strikes aimed at disturbing public order and that detaining authority, therefore, while taking into account past activities of detenu found it imperative and necessary to detain him inasmuch as preventing him from indulging in the said activities not with an object of punishing him for something he has done but to prevent him from doing it. Reference of FIRs in grounds of detention reflects and manifests awareness of detaining authority qua conduct and activities of detenu that he has been indulged in. The order of detention has been passed by detaining authority as a precautionary measure based on a reasonable prognosis of the future behaviour of detenu based on his past conduct in light of surrounding circumstances much probability emerged warrant detention of detenu.

4. I have heard learned counsel for parties and considered the matter. I have gone through the detention record made available by learned counsel for respondents.

5. Prior to adverting to case in hand, it would be apt to say that right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down, in Maneka Gandhi v. Union of India, 1978 AIR SC 597, is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such a person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. Nevertheless, it is to be seen that framers of the Constitution of India have incorporated Article 22 in the Constitution of India, aiming at leaving room for placing a person under preventive detention without a formal charge and trial and without such a person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object are to save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person, having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent a person bent upon to perpetrate mischief from translating his ideas into action. Article 22 Constitution of India, therefore, leaves scope for enactment of preventive detention laws.

5.1. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is satisfaction of the Executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. It is pertinent to mention here that preventive detention means detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure conviction of detenu by legal proof, but may still be sufficient to justify his detention. [Sasthi Chowdhary v. State of W.B. (1972) 3 SCC 826]. While the object to punitive detention is to punish a person for what he has done, the object of preventive detention is not to punish an individual for any wrong done by him, but curtailing his liberty with a view to preventing him from committing certain injurious activities in future. Whereas punitive incarceration is after trial on the allegations made against a person, preventive detention is without trial into the allegations made against him. [Haradhan Saha v. State of W.B. (1975) 3 SCC 198]

5.2. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. The compulsions of primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meaning, are the true justifications for the laws of preventive detention. This justification has been described as a “jurisdiction of suspicion” and the compulsions to preserve the values of freedom of a democratic society and social order, some times merit the curtailment of individual liberty. [State of Maharashtra v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613]

5.3. To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. [Union of India v. Yumnam Anand M., (2007) 10 SCC 190; R. v. Holliday, 1917 AC 260; Ayya v. State of U.P. (1989) 1 SCC 374]

5.4. Long back, an eminent thinker and author, Sophocles, had to say: “Law can never be enforced unless fear supports them.” Though this statement was made centuries back, yet it has its relevance, in a way, with enormous vigour, in today’s society as well. Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray. It is completely xenophobic of anarchy. If anyone breaks law, he has to face the wrath of law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect collective interest and save every individual that forms a constituent of the collective from unwarranted hazards.

5.5. It is worthwhile to mention here that it is sometimes said in a conceited and uncivilised manner that law cannot bind individual actions that are perceived as flaws by large body of people, but, truth is and has to be that when law withstands test of Constitutional scrutiny in a democracy, individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending upon the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices.

5.6. Acts or activities of an individual or a group of individuals, prejudicial to the security of the State or maintenance of peace and public order, have magnitude of across-the-board disfigurement of societies. No Court should tune out such activities, being swayed by passion of mercy. It is an obligation of the Court to constantly remind itself the right of society is never maltreated or marginalised by doings, an individual or set of individuals propagate and carry out.

6. Article 22(5) of the Constitution of India and Section 13 of the Act of 1978, guarantee safeguard to detenu to be informed, as soon as may be, of grounds on which order of detention is made, which led to subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenu is to be furnished with sufficient particulars enabling him to make a representation, which on being considered, may obtain relief to him.

6.1. In the present case, learned senior counsel representing petitioner, after ingeminating the grounds made in writ petition for quashing impugned detention order, has stated that the case diaries and material, relied upon by detaining authority, have not been supplied to detenu. His further submission is that no material has been given or comes forth for extension of detention of detenu inasmuch as extension of detenu is inconsistent with the observations made by the Division Bench of this Court in Tariq Ahmad Sofi v. State of J&K and others, 2017 (I) SLJ 21 (HC).

6.2. Taking into account above submission of Mr Shah, learned senior counsel appearing for petitioner, it would be in the fitness of things to go through Section 18 of the Act of 1978. It provides:
“18. Maximum period of detention. –
(1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 17, shall be –
(a) three months in the first instance which may be extended upto twelve months from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order
…………….
(2) Nothing contained in this section shall affect the powers of the Government to revoke or modify the detention order at any earlier time, or to extend the period of detention of a foreigner in case his expulsion from the State has not been made possible.”

6.3. Prior to having an analysis and elaboration qua provisions of Section 18 of the Act, it would be germane to mention here that if one looks at the acts, the J&K Public Safety Act, 1978 is designed for, is to prevent, they are all these acts, that are prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activities have national level consequences. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The said views and principles have been reiterated by the Supreme Court in Gautam Jain v. Union of India another AIR 2017 SC 230.

6.4. It would be apt to have glimpse of Section 8 of the Act of 1978. It reads:
“8. Detention of certain persons. –
(1) The Government may-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
(i) the security of the State or the maintenance of the public order;
……………………………………….
it is necessary so to do, make an order directing that such person be detained.
(2) any of the following officers, namely
(i) Divisional Commissioners,
(ii) District Magistrate, may, if satisfied as provided in sub-clause (i) and (ii) of clause [(a) or (a-1)] of sub-section (1), exercise the powers conferred by the said sub-sections.
(3) For the purposes of sub-section (1), [(a) Omitted.]
(b) “acting in any manner prejudicial to the maintenance of public order” means-
(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise, abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order;
…………………………..….
(4) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.”

6.5. From bare perusal of Section 8 (1) it comes to fore that the Government may, if it is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to security of the State or maintenance of public order, it is necessary so to do, make an order directing that such a person be detained. Sub-Rule (1) of Section 8 of Act of 1978, thus, emphatically, envisions that any person can be placed under preventive detention if the Government is satisfied with respect to such a person that with a view to preventing him from acting in any manner prejudicial to the security of the State or maintenance of public order, it is essential to place such a person under preventive detention.

6.6. Subsection (3) of Section 8 of the Act of 1978 enumerates various prejudicial activities that would fall within the mischief of “acting in any manner prejudicial to the maintenance of public order”. It covers in its fold prejudicial activities in the nature of promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on the ground of religion, race, community or region. It also includes activities of making preparations for using or attempting to use or using or instigating inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order. Attempting to commit, or committing, or instigating, provoking or otherwise abetting commission of mischief where the commission of such mischief disturbs or is likely to disturb public order, comes within the meaning of activities in any manner prejudicial to the maintenance of public order. Acting in any manner prejudicial to maintenance of public order, also consists of attempting to commit or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more where the commission of such offence disturbs, or is likely to disturb public order.

6.7. Subsection (4) of Section 4 of the Act of 1978 envisions that when an order of detention is made, detaining shall report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after making thereof unless in the interregnum, it has been approved by the Government.

6.8. To see as to whether, in the present case, detaining authority has reported the fact concerning making of order of detention to the Government, I have gone through the detention record produced by learned counsel for respondents. A communication bearing no.DMS/ PSA /Jud/3859/2019 dated 7th August 2019, has been addressed by respondent no.2 (detaining authority) to Principal Secretary to Government, Home Department, for approval of impugned detention order.

6.9. Detention record also comprises of a Government Order no.Home/PB- V /1141 of 2019 dated 7th August 2019. By this order impugned detention order of detenu has been approved and the period of detention has been said to be determined on the basis of opinion of the Advisory Board.

6.10. In such circumstances, detaining authority had, immediately upon issuance of impugned detention order, reported the said fact to the Government and the Government approved impugned detention order. Thus, there is no hindrance in saying that provisions of Subsection (4) of Section 8 of the Act of 1978, have been strictly complied with by respondents.

7. Section 9 of the Act of 1978 provides that a detention order may be executed at any place in the manner provided for executing warrants of arrest. Section 10 envisions that any person in respect of whom a detention order has been made under Section 8 of the Act shall be liable to be detained in such a place and under such conditions including conditions as to maintenance of discipline and punishment for breaches of discipline as the Government may specify and that any person placed under preventive detention shall be liable to be removed from one place of detention to another place of detention.

8. Where a person has been detained in pursuance of an order of detention under Section 8 of the Act of 1978, made on two or more grounds, such order of detention, as envisaged under Section 10-A of the Act of 1978, shall be deemed to have been made separately on each of such grounds and as a consequence whereof, such an order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person.

9. Section 13 of the Act of 1978 says that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him, in the language which is understandable to him, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order of detention. However, Subsection (2) of Section 13 emphatically mentions that nothing in subsection (1) of Section 13 shall require the authority to disclose facts which it considers to be against the public interest to disclose.

9.1. Given the Statutory and Constitutional requirements to be followed by respondents in the present case, I thought it apt to again go through the detention record produced by learned counsel for respondents. It comprises of Execution Report as well. Perusal whereof reveals that Shri Parvaiz Ahmad, Inspector no.7833/NGO SHO Police Station Khayar has executed the detention warrant on 8th August 2019. Ten leaves, comprising PSA warrant, grounds of detention, letter addressed to detenu, have been handed over to detenu under proper receipt. It also divulges that detenu has been informed to make a representation against his detention.

9.2. Apropos to make mention here that Article 22 (5) of the Constitution of India casts a dual obligation on the detaining authority, viz.:
(i) To communicate grounds of detention to the detenu at the earliest;
(ii) To afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible.

9.3. The Supreme Court has reiterated that communication means bringing home to detenu effective knowledge of facts and grounds on which order of detention is based. To a person who is not conversant with English language, in order to satisfy requirement of the Constitution, must be given grounds in a language that he can understand and in a script that he can read, if he is a literate person. If a detained person is conversant with English language, he will naturally be in a position to understand gravamen of the charge against him and the facts and circumstances on which order of detention is based. So is the position in the present case.

9.4. The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention. It has also, by way of limitations upon the freedom of personal liberty, recognised right of the State to legislate for preventive detention, subject to certain safeguards in favour of detained person, as laid down in Clauses (4) & (5) of Article 22. One of those safeguards is that detained person has a right to be communicated the grounds on which order of detention has been made against him, in order that he may be able to make his representation against the order of detention. In the circumstances of instant case, it has been shown that detenu had opportunity, which the law contemplates in his favour, for making an effective representation against his detention. He, however, did not avail of said opportunity.

9.5. In that view of matter, the contentions in the petition on hand that detenu was not furnished the material relied upon by detaining authority to make a representation against his detention while passing impugned detention order, are meretricious.

10. Section 14, that follows Section 13, provides constitution of Advisory Board for the purposes of the Act of 1978, which shall comprise of a Chairman and members. Such a Chairman and members shall be appointed by the Government in consultation with the Chief Justice of the High Court. Section 15 says that in every case, where a detention order has been made under the Act of 1978, the Government shall within four weeks from the date of detention order, place before Advisory Board the grounds on which order of detention has been made; representation, if any, made by person affected by order of detention and in case where order of detention has been made by an officer, also report by such officer under subsection (4) of Section 8. After considering the material placed before the Advisory Board and after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if in any particular case the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the Government within six weeks from the date of detention.

10.1. In the present case detention record, on its glance, would divulge that Advisory Board vide its order Report dated 29th August 2019, has conveyed that grounds of detention formulated by detaining authority are sufficiently supported by dossier/material and that grounds of detention and other relevant material were furnished to detenu at the time of taking him into detention and that detenu was also informed about his right of making representation against his detention. However, no representation has been made by detenu and, therefore, there is no rebuttal to the grounds of detention formulated by detaining authority. The report of Advisory Board also reveals that all the requirements contemplated under the Act of 1978, have been complied with and no error of law or procedure, which would invalidate the detention, have been committed by detaining authority and as an outcome thereof, the detention is in conformity with the principles as enshrined under Article 22(5) of the Constitution of India and the provisions of the Act of 1978. The Advisory Board has opined that there is sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.

10.2. By communication no.AB/PSA/2019/282 dated 29th August 2019, the Advisory Board, transmitted its Report pertaining to detenu for further action. The Government, in exercise of powers conferred by Section 17(1) of the Act of 1978, confirmed impugned order of detention and directed lodgement of detenu in Central Jail, Agra, for a period of three months in the first instance. So, there is strict compliance of provisions of Section 14, 15, 16, and 17 of the Act of 1978.

11. Now comes Section 18 of the Act of 1978. Plain reading thereof says that maximum period, upon confirmation of detention order in terms of Section 17, shall be three months in the first instance, extendable up to twelve months. Thus, detention order in the beginning will be for three months and is extendable up to twelve months at the discretion of Government. So, the Government in terms of Section 18 does not require to pass any fresh order of detention. It only makes operation of original detention order longer in time.

11.1. During the course of argumentation of the case, a concerted argument of learned senior counsel for petitioner has been that for extension of detention, no compelling reason comes to fore. In this regard he has also relied upon the judgement of the Division Bench of this Court rendered in the case of Tariq Ahmad Sofi (supra). However, I am not swayed muchless impressed by this submission. The reason being that first of all Section 18 of the Act of 1978 empowers the Government to extend detention of a person, already placed under preventive detention under Section 8 and confirmed under Section 17. Compelling reasons are to be shown and subjective satisfaction arrived at by detaining authority, at the threshold, when it passes order of detention, followed by opinion of Advisory Board inasmuch as opinion of Advisory Board is a clinching moment in the matter of detention.

11.2. Here it is pertinent to mention that Article 22(4) of the Constitution of India is another safeguard provided to a detenu under preventive detention. The Supreme Court in Abdul Latif v. B.K. Jha, (1987) 2 SCC 22, has said that under Article 22(4)(a), preventive detention for over three months is possible only when an Advisory Board holds that, in its opinion, there is sufficient cause for such detention. The Advisory Board must report before the expiry of three months. If the report is not made within three months of the date of detention, the detention would become illegal.

11.3. The Supreme Court in Nandlal v. State of Punjab, (1981) 4 SCC 327, has spelled out the rule that not only the Advisory Board should report within three months of the date of detention that in its opinion there is sufficient cause for detention of detenu, but also the Government should itself confirm and extend the period of detention as failure on the part of the Government to do so will render detention invalid as soon as three months elapse and any subsequent action by the Government cannot have the effect of extending the period of detention beyond three months. The Division Bench in Tariq Ahmad Sofi (supra) has categorically mentioned that provisions of Section 18 of the Act of 1978 confer discretion on the Government whether or not to extend the detention of a detenu beyond initial period of three months, however, such discretion has to be exercised on some kind of satisfaction to be attained by the Government to extend or not to extend the detention period, and for how long. However, such satisfaction would be founded on the opinion of Advisory Board and relatable to grounds of detention already served on the detenu.

11.4. In the present case, Advisory Board has furnished its Report opining disclosure of sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to maintenance of public order.

11.5. In view of above it is made clear here that this Court cannot go into the question whether on the merits the detaining authority was justified to make the order of detention or to continue it, as if sitting on appeal. Thus, this Court cannot interfere on the ground that in view of the fact that times have changed, further detention would be unjustified. That is for the Government and the Advisory Board to consider. Reference in this regard is made to Bhim Sen v. State of Punjab, AIR 1951 SC 481; Gopalan A.K. v. State of Madras AIR 1950 SC 27; Shibbanlal Saksena v. State of U.P., AIR 1954 SC 17; Hemlata Kantilal Shah v. State of Maharashtra, AIR 1982 SC; Sheoraj Prasad Yadav v. State of Bihar, AIR 1975 SC 1143; and Ram Bali Rajbhar v. State of W.B. AIR 1975 SC 623.

12. Learned senior counsel appearing for petitioner has also stated that the allegations/ grounds of detention are vague and the instances and cases mentioned in grounds of detention have no nexus with detenu and have been manoeuvred by police in order to justify its illegal action of detaining detenu. It is his submission that activities mentioned in grounds of detention pertain to the year 2008 and 2010 and that respondent no.2 has relied upon FIRs registered in the year 2008 and 2010 for detaining detenu, for which detenu had already been detained in the year 2010 and that such material cannot be relied upon for repeating the order of detention. Petitioner states that a mention is made about his activities after death of Burhan Wani in the year 2016, which fact is not correct and that it is a false allegation levelled against detenu inasmuch as these incidents, which have been relied upon by respondent no.2, for passing impugned order of detention are vague, without any material to support the same. The detaining authority is said to have not even mentioned as to what has happened to FIRs relied upon by detaining authority in grounds of detention and as to whether FIRs have been concluded and put to the Court for trial by producing Challan or whether investigation has been concluded or completed by police stations concerned, in these FIRs even after nine years, which would mean that FIRs itself have become stale, so far as connecting detenu with today’s situation is concerned. In support of his submission, learned senior counsel has placed reliance on Chhagan Bhagwan Kahar v. N.L. Kalna and others, (1989) 2 SCC 318; T.B.Abdul Rahaman v. State of Kerala and others, 91989) 4 SCC 741; Thahira Haris Etc v. Government of Karnataka and others, (2009) 11 SCC 438; Sama Aruna v. State of Telangana, (2018) 12 SCC 150.

12.1. To consider above submission, I have gone through grounds of detention. It, inter alia, mentions that detenu believes that Jammu and Kashmir is a disputed territory and it has to be seceded from Union of India and annexed with Pakistan and that role of detenu has remained highly objectionable as he was indicted many times in past for secessionist activities, which can be gauged from the fact that at least four criminal cases have been registered against him and his associates for violating various laws, whose sanctity they are supposed to uphold in highest esteem. It is also mentioned in grounds of detention that detenu used every occasion to propagate secessionist ideology and even allows known secessionist elements to use platform of J&K High Court Bar Association, Srinagar, besides, he has gone to extent of even sponsoring strikes as President Bar Association, thus instigating general public to indulge in activities, which are prejudicial to maintenance of public order and that a number of newspaper reports have also been presented before the detaining authority that substantiate indulgence of detenu in secessionist activities. It is also made mention of that despite holding responsible position of Bar Association, detenu wilfully and actively indulged in unlawful activities and instigated people for violence thereby disturbing public order.

12.2. Mr B. A. Dar, learned Sr. AAG, to rebut the submissions of learned senior counsel for petitioner has, while recapitulating the assertions made in Reply Affidavit filed by respondents, stated that detenu has emerged as one of the most staunch advocate of secessionist ideology propagating in public through his speeches and appeals and that detenu has been involved in various criminal cases inasmuch as detenu has been using platform of J&K Bar Association for promoting and advocating his secessionist ideology and has been sponsoring strikes while instigating general public for indulging in activities prejudicial to maintenance of public order. It is also claimed that detenu has been actively involved in furtherance of his secessionist ideology in the Valley, particularly during agitation of 2008 as also in the agitation at the time of killing of terrorist, Burhan Wani, in 2016, which agitation led to highest magnitude of violence in the Valley, leaving many people dead. Since detenu have had a long history of promoting, propagating and advocating secessionist ideology inasmuch as instigating public wilfully and unlawfully for violence against the government established under law and its functionaries, therefore, detaining authority on careful examination of the entire material furnished to it by all concerned, deemed it expedient, imperative and appropriate to detain detenu under the provisions of the Act of 1978 in terms of order dated 7th August 2019, in that there has been every likelihood and apprehension after Government of India passed law regarding abrogation of Article 370 read with Article 35(A) of the Constitution of India and detenu in view of his secessionist ideology and on account of his past unlawful activities, having been found prejudicial to maintenance of public order, would instigate general public to resort to violence, which would in the process disturb maintenance of public order. Hence detaining authority found it necessary and imperative to invoke relevant provisions of the Act of 1978 and subsequently detain the detenu in order to preclude him from indulging in activities which would be prejudicial to maintenance of public order. He has also insisted that power of preventive detention is a precautionary power exercised in reasonable anticipation and it may or may not relate to an offence. The basis of detention is satisfaction of Executive on a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and prevent him from doing same. It is contended that detenu has been staunch advocate of secessionist ideology instigating public through his speeches, hartal calls and physical participation in strikes aimed at disturbing public order and that detaining authority, therefore, while taking into account past activities of detenu found it imperative and necessary to detain him inasmuch as preventing him from indulging in the said activities not with an object of punishing him for something he has done but to prevent him from doing it. Reference of FIRs in grounds of detention reflects and manifests awareness of detaining authority qua conduct and activities of detenu that he has been indulged in. The order of detention has been passed by detaining authority as a precautionary measure based on a reasonable prognosis of the future behaviour of detenu based on his past conduct in light of surrounding circumstances much probability emerged warrant detention of detenu. Learned counsel, to cement his arguments, has relied upon Borjahan Gorey v. The State of West Bengal, (1972) 2 SCC 550; Debu Mahto v. The State of W.B., AIR 1974 SC 816; State of U.P. v. Durga Prasad, (1975) 3 SCC 210; Ashok Kumar v. Delhi Administration and others, AIR 1982 SC 1143; State of Maharashtra and others v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613; Gautam Jain v. Union of India & anr., 2017 (1) JKLT 1 (SC); Union of India and another v. Dimple Happy Dhakad, AIR 2019 SC 3428.

12.3. In the above backdrop it is mentioned that the purpose of J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level consequences. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in turmoil. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.

12.4. It may not be out of place to mention here that grounds of detention are definite, proximate and free from any ambiguity. Detenu has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made it to exercise its powers under Section 8 of the Act of 1978, and record subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of peace and public order.

12.5. In such circumstances, suffice it is to say that there had been material before detaining authority to come to conclusion and hence, it cannot be said that subjective satisfaction of detaining authority was wrongly arrived at or grounds of detention are self-contradictory or vague. The role of detenu has been specifically described.

12.6. Even otherwise it is settled law that this Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material. [State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216] . This Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. [State of Punjab v. Sukhpal Singh (1990) 1 SCC 35]

12.7. This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenu from engaging in activities prejudicial to security of the State or maintenance of public order. [See:Union of India v. Arvind Shergill (2000) 7 SCC 601; Pebam Ningol Mikoi Devi v. State of Manipura, (2010) 9 SCC; and Subramanian v. State of T.N. (2012) 4 SCC 699 ]

12.8. It may not be inappropriate to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order. In this regard the Constitution Bench of the Supreme Court in Haradhan Saha’s case (supra), while considering various facets concerning preventive detention, has observed:

“32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.

34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of W.B., Ashim Kumar Ray v. State of W.B.; Abdul Aziz v. District Magistrate, Burdwan and Debu Mahato v. State of W.B. correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of U. P., (1974) 4 SCC 573, which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.”

13. The Supreme Court in the case of Debu Mahato v. State of W.B. (1974) 4 SCC 135, has said that while ordinarily-speaking one act may not be sufficient to form requisite satisfaction, there is no such invariable rule and that in a given case “one act may suffice”. That was a case of wagon-breaking and given the nature of the Act, it was held therein that “one act is sufficient”. The same principle was reiterated in the case of Anil Dely v. State of W.B. (1974) 4 SCC 514. It was only a case of theft of railway signal material. Here too “one act was held to be sufficient”. Similarly, in Israil S K v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310, a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this: “Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity.” The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court. Similarly, where the person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, as in the present case detenu has been apprehended with arms and ammunition, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity.

14. One more submission was taken during course of advancing the arguments that criminal prosecution could not be circumvented or short-circuited by ready resort to preventive detention and power of detention could not be used to subvert, supplant or substitute punitive law of land. It was also urged that no material has been disclosed by detaining authority in grounds of detention to establish existence of any exceptional reasons justifying recourse to preventive detention inasmuch as implication of detenu in criminal offence(s) would suggest that these offences could be dealt with under the provisions of criminal law and if at all detenu would be found involved in the offence(s) after a full dressed trial before criminal court, the law would take its own course, and in the absence of such reasons before detaining authority, it was not competent to detaining authority to make order of detention bypassing criminal prosecution. This argument completely overlooks the fact that the object of making an order of detention is preventive while object of a criminal prosecution is punitive. Even if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention, because, as pointed out by the Supreme Court in Subharta v. State of West Bengal, [1973] 3 S.C.C. 250, “the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter”, the order of detention would not be bad merely because criminal prosecution has failed. It was pointed out by the Supreme Court in that case that “the Act creates in the authority concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general. This Jurisdiction is different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would therefore not operate as a bar to a detention order or render it mala fide”. If the failure of criminal prosecution can be no bar to the making of an order of detention, a fortiori the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. If an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of inconvenience of proving guilt in a court of law, it would certainly be an abuse of power of preventive detention and detention order would be bad. But if object of making the order of detention is to prevent commission in future of activities, injurious to the community, it would be a perfectly legitimate exercise of power to make the order of detention. The Court would have to consider all the facts and circumstances of the case in order to determine on which side of the line the order of detention falls. The order of detention was plainly and indubitably with a view to preventing detenu from continuing the activities which are prejudicial to the maintenance of public order.

15. In the above milieu, it would be apt to refer to the observations made by the Constitution Bench of the Supreme Court in the case of The State of Bombay v. Atma Ram Shridhar Vaidya AIR 1951 SC 157. The paragraph 5 of the judgement lays law on the point, which is profitable to be reproduced infra:
“5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community ….. it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government.”

16. In the light of aforesaid position of law settled by the Six-Judge Constitution Bench, way back in the year 1951, the scope of looking into the manner in which subjective satisfaction is arrived at by detaining authority, is limited. This Court, while examining the material, which is made basis of subjective satisfaction of detaining authority, would not act as a ‘court of appeal’ and find fault with the satisfaction on the ground that on the basis of material before detaining authority, another view was possible. Resultantly, the judgements cited by learned senior counsel would not offer any assistance to the case set up by petitioner.

17. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or maintenance of public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127.

18. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand, and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black- marketing activities, etcetera demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.

19. In considering and interpreting preventive detention laws, the Courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity— an unhappy necessity—was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the Court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification. It is well settled that if detaining authority is satisfied that taking into account nature of antecedent activities of detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. [See: State of W.B. v. Ashok Dey, (1972) 1 SCC 199; Bhut Nath Mete v. State of W.B., (1974) 1 SCC 645; ADM v. Shivakant Shukla (1976) 2 SCC 521; A. K. Roy v. Union of India, (1982) 1 SCC 271; Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746; Kamarunnisa v. Union of India and another, (1991) 1 SCC 128; Veeramani v. State of T.N. (1994) 2 SCC 337; Union of India v. Paul Manickam and another, (2003) 8 SCC 342; and Huidrom Konungjao Singh v. State of Manipur and others, (2012) 7 SCC 181].

20. Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so, the Supreme Court in the case of Naresh Kumra Goyal v. Union of India and others, (2005) 8 SCC 276, and ingeminated by the Supreme Court in Dimple Happy Dhakad, (supra), has held that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent antisocial and subversive elements from imperilling welfare of the country or security of the nation or from disturbing public tranquillity or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.

21. To sum up, a law of preventive detention is not invalid because it prescribed no objective standard for ordering preventive detention, and leaves the matter to subjective satisfaction of the Executive. The reason for this view is that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. Preventive detention is, thus, based on suspicion or anticipation and not on proof. The responsibility for security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention. Having said that, subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not. It is often said and held that the Courts do not even go into the question whether the facts mentioned in grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the courts and that is not the policy of law of preventive detention. This matter lies within the competence of Advisory Board. While saying so, this Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant.

22. For the foregoing discussion, the petition sans any merit and is, accordingly, dismissed.

23. Detention record be returned to learned counsel for respondents.

(Tashi Rabstan)
Judge

Srinagar
07.02.2020

Whether approved for reporting? Yes

The post Mian Abdul Qayoom Vs State of J&K and others appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 353 of 2020
(Arising out of SLP (C) No. 381 of 2019)
M/S. PAWAN HANS LIMITED & ORS. …APPELLANTS
Versus
AVIATION KARMACHARI SANGHATANA & ORS. …RESPONDENTS
J U D G M E N T

INDU MALHOTRA, J.

Leave granted.

1. The issue which arises for consideration is whether the contractual employees of the Appellant­Company are entitled to provident fund benefits under the Pawan Hans Employees Provident Fund Trust Regulations or under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“EPF Act”) and the Employees’ Provident Fund Scheme, 1952 (“EPF Scheme”) framed thereunder.

2. The background facts in which the present Civil Appeal has been filed are as under :

2.1 The Company was incorporated on 15.10.1985 under the Companies Act, 1956, and is registered as a Government of India company with the Registrar of Companies, Delhi. The Government of India holds 51% shareholding in the Appellant­Company and the remaining 49% is held by Oil
and Natural Gas Company Ltd. (ONGC).

The Company was incorporated with the primary objective of providing helicopter support services to the oil sector for its off­shore exploration operations, services in remote and hilly areas, and charter services for promotion of tourism. It is classified as a non­scheduled operator
under Rule 134 of the Aircraft Rules, 1937.

2.2 On 01.04.1986, the Appellant­Company framed and notified the Pawan Hans Employees Provident Fund Trust Regulations (hereinafter referred to as “the PF Trust
Regulations”) for giving provident fund benefits to all the employees of the Appellant­Company.

Regulations 1.3 and 2.5 of the PF Trust Regulations are set out hereunder for ready reference:

“1.3 ­ These Regulations shall apply to all the employees of the Corporation.

2.5. – “Employee” means any person who is employed for wages/salary in any kind of work, monthly or otherwise, in or in connection with the work of the Corporation and who gets his wages/salary directly or indirectly from the Corporation, and excludes any person employed by or through a contractor or in connection with the work of the Corporation but does not include any person employed as an apprentice or trainee.”
[emphasis supplied]

2.3 On 26.03.1987, the Appellant­Company instituted the Pawan Hans Employees Provident Fund Trust (“PF Trust”) wherein the management started depositing its share towards the provident fund contribution with respect to employees on the regular cadre of the Company;
correspondingly, the regular employees started depositing the matching contribution with the PF Trust.

2.4 Out of a total workforce of 840 employees, the Company had engaged 570 employees on regular basis, while 270 employees were engaged on ‘contractual’ basis. The Company implemented the PF Trust Regulations only with respect to the regular employees, even though the term “employee” had been defined to include “any person” employed “directly or indirectly” under the PF Trust Regulations.

2.5 The Company having framed its own PF Trust Regulations, was claiming exemption from the applicability of the EPF Act and EPF Scheme under Section 16 of the EPF Act.

2.6 On 08.01.1989, the Ministry of Labour, Government of India, issued a communication to the Central Provident Fund Commissioner, New Delhi, pertaining to the grant of exemption to departmental undertakings under the control of the Central/State Government statutory bodies. The Central Provident Fund Commissioner was directed to instruct the Regional Provident Fund Commissioners to carefully review the cases of departmental undertakings and statutory bodies falling under the categories specified in Section 16(1)(b) and 16(1)(c) of the EPF Act, and take further action as indicated in the said letter.

Clause (iv) of the said letter dated 08.01.1989 is of relevance, and is extracted hereunder for ready reference: “(iv) There may be establishments which employ large member of casual/contingent staff, who are not entitled to the benefit of provident fund or pension. The casual/contingent staff of such establishment will continue to be covered under the Act, but their regular employees who are entitled to the benefit of provident fund or pension should be excluded from the purview of the Act.”
[emphasis supplied]

2.7 The Central Government, in exercise of the powers under S.1(3)(b) of the EPF Act, issued a Notification dated 22.03.2001, making the provisions of the EPF Act applicable to aircraft or airlines establishments employing 20 or more persons, excluding aircraft or airlines establishments owned or controlled by the Central or State Government.
The Gazette Notification No. SO 746 dated 22.03.2001 (“Notification”) is extracted for ready reference:­
” S.O. 746 – In exercise of the powers conferred by
clause (b) of sub section (3) of Section 1 of the Employees Provident Fund and Miscellaneous Provisions Act 1952 (19 of 1952), the Central Government hereby specifies the following establishment employing 20 or more persons as the class of establishments to which the said Act shall apply with effect from 1st April 2001 namely:
(i) An establishment engaged in rendering courier services;
(ii) An establishment of aircraft or airlines other than the aircraft airlines owned or controlled by the Central or State Government.
(iii) An establishment engaged in rendering cleaning and sweeping services.”
[emphasis supplied]

The said Notification was brought into force w.e.f 01.04.2001.
2.8 Correspondingly, amendments were made to the EPF Scheme framed under Section 5 of the EPF Act. Clause 3 (b)(ci) was inserted vide Notification No. S­35016/1/1997­ SS II dated 22.07.2002, by which the EPF Scheme was made applicable to aircraft or airlines establishments other than the aircraft or airlines establishments owned or controlled by the Central or State Government.

2.9 The members of the Respondent­Union made several representations on 18.09.2012, 29.09.2012, 13.03.2013, 19.11.2014 to extend the benefit of the PF Trust Regulations since they were directly engaged by the Company on contractual basis, some of whom were working for almost 20 years.
The Company failed to respond to the representations.

2.10 Being aggrieved by the inaction of the Company, the Respondent­Trade Union, filed CWP No.325 of 2017 on 20.12.2016 against the Company praying for the following reliefs:
“(a) A declaration that the members of the Respondent­ Trade Union and other similarly situated employees, employed on contract basis by the Appellant­Company are entitled to the benefit of Provident Fund as per the EPF Act and the EPF Scheme, and that the Appellant­Company be directed to forthwith enrol all such eligible contract employees under the EPF Scheme and deposit their contribution with the Respondent No. 3­ Regional Provident Fund Commissioner, Employees’ Provident Fund Organisation, from the date they are eligible till remittance, and thereafter, till they are in the employment of the Appellant­Company.
(b) Alternatively, the Appellant­Company forthwith be directed to suitably amend the PF Trust Regulations to permit the enrolment of contract workers as members of the PF Trust instituted by the Appellant­Company and to make all eligible contract employees members of the PF Trust from their respective dates of entitlement and continue to contribute amounts to the PF Trust in respect of contract employees.”

2.11 During the pendency of the Writ Petition, the Regional Provident Fund Commissioner, Bandra issued a letter dated 24.05.2017 to the Company wherein it was stated that even though the EPF Act would not apply to establishments owned/controlled by the Central Government as per S.16(1)(b) and (c), however social security benefits such as provident fund must be provided to all “employees/workers who are engaged on contractual/casual/daily wages basis” since there is no distinction between a person employed on permanent, temporary, contractual, or casual basis under S.2 (f) of the EPF Act.

2.12 The High Court vide the impugned Judgment & Order dated 12.09.2018 allowed the Writ Petition in terms of prayer (a), with the direction that the benefits under the EPF Act be extended to the members of the Respondent­ Trade Union, and other similarly situated employees. It was held that a liberal view must be taken in extending social security benefits to the contractual employees. The High Court directed the Company to enrol all eligible contractual employees under the EPF Scheme, and deposit their contribution with Respondent No.3 – Regional Provident Fund Commissioner from the date they became eligible till remittance, and thereafter till they are in employment of the Company. This was to be carried out latest by 31.12.2018.

3. Aggrieved by the impugned Judgment, the Appellant­ Company filed the present Civil Appeal.

This Court vide Order dated 14.01.2019 issued notice and granted stay of the impugned Judgment subject to the Company depositing a sum of Rs.5,00,00,000/­ (Rupees Five Crores) within 3 months in this Court.

Pursuant thereto, the Company deposited the said amount on 09.04.2019, which has been invested in a Fixed Deposit.

4. We have heard the learned counsel for both the parties, and have considered the oral and written submissions made on their behalf.

4.1 Ms. Pinky Anand, learned Additional Solicitor General of India, appearing for the Appellant­Company inter alia submitted that:
a) The Company is excluded from the applicability of the EPF Act since it neither falls under Schedule I of the EPF Act, nor is it covered by Notification dated 22.03.2001 issued under Section 1(3)(b) of the EPF Act, since the Notification itself expressly excludes airline companies “owned or controlled by the Central Government” from the purview of the EPF Act.
b) The Notification 22.03.2001 was inapplicable to the Appellant­Company since Section 16(1)(b) of the EPF Act, excludes an establishment owned or controlled by the Central Government from the scope of the EPF Act.
c) The Central Government holds 51% of the shareholding in the Appellant­Company, and the Board of Directors of the Appellant­Company have been appointed by the Ministry of Civil Aviation. The Appellant­Company is governed by the guidelines issued by the Department of Public Enterprises, Government of India. The Appellant­Company is thus an establishment owned and controlled by the Central Government. Even after the EPF Act became applicable to the airlines industry, the Appellant­ Company being an establishment owned and controlled by the Central Government, was excluded from the purview of the EPF Act.
d) The High Court committed a grave error in giving retrospective application to the provisions of the EPF Act, i.e., from the date of the members joining the Respondent­Trade Union, given that several contractual employees had superannuated, passed away, resigned, or ceased to be in the employment of the Company. The extension of benefits under the EPF Act to contractual employees irrespective of their status of employment with the Company was wholly illegal, arbitrary, and liable to be set aside.
e) The members of the Respondent­Union and other similarly situated employees have already been paid in full their monthly financial benefits/emoluments. The direction of the High Court to the Company to contribute to the provident fund of the contractual employees would amount to burdening the Company with twice the liability.

4.2 Mr. P.S. Narasimha, learned Senior Counsel appearing on behalf of the Respondent­Union inter alia submitted that:
a) The term “employee” defined by Clause 2.5 of the PF Trust Regulations is widely defined to cover all employees, including those engaged on contractual basis, who are in the direct or indirect employment of the Company. The members of the Respondent­Union are in direct employment of the Company, since they have not been engaged through any contractor. The contractual workers are paid directly as evidenced by the pay slips issued by the Company. The benefits under the PF Trust Regulations, or the EPF Act, are required to be provided to even contractual employees from the date of their joining till the date of remittance.
b) The Company is not controlled by the Central Government since its affairs are managed and controlled by a Board of Directors. The Company is not a company controlled by the Central Government.
The Notification dated 22.03.2001, specified certain establishments including the airlines industry, other than airlines owned or controlled by the Central or State Government, to be covered under the EPF Act. Consequently, the Company was obligated to extend the benefits under the EPF Act to all its employees.
c) The EPF Act is a beneficial piece of legislation, which has to be liberally construed. The denial of statutory benefits and entitlements like provident fund to the members of the Respondent­Union is ex­facie illegal, arbitrary, discriminatory and in violation of the provisions of the EPF Act and the Constitution of India.

5 The issue which arises for consideration in the present Civil Appeal is whether the Appellant­Company is under a statutory obligation to provide the benefit of provident fund to its contractual employees under the PF Trust Regulations or the EPF Act?

If so, the date from which the aforesaid benefit is to be extended to the contractual employees.

6 Discussion and Analysis

6.1 It is first required to be seen whether the Appellant­ Company is excluded from the applicability of the provisions of the EPF Act and the EPF Scheme framed thereunder as contended by them.

6.2 As per Section 1(3) of the EPF Act, the EPF Act is applicable to every establishment in which 20 or more persons are employed, which is either a factory engaged in any industry specified in Schedule I, or an establishment which the Central Government may by notification in the Official Gazette specify in that behalf. Section 1(3) of the EPF Act reads as:
“Section.1(3) : Subject to the provisions contained in section 16, it applies —
(a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and
(b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided that the Central Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification.”
[emphasis supplied]

Section 1(3) is subject to Section 16 of the EPF Act. Sub­section (1) of Section 16 enlists those establishments which are excluded from the applicability of the EPF Act. As per clause (b) of sub­section (1), an establishment belonging to or under the control of the Central or State Government, and whose employees are entitled to the benefit of contributory provident fund in accordance with any scheme or rules framed by the Central or State Government governing such benefits, is excluded from the purview of the EPF Act.

Sub­section (1) of Section 16 reads as:
“Section 16. Act not to apply to certain establishment.–
(1) This Act shall not apply­
(a) to any establishment registered under the Co­operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State relating to cooperative societies employing less than fifty persons and working without the aid of power; or
(b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory provident fund or old age pension in accordance with any Scheme or rule framed by the Central Government or the State Government governing such benefits; or
(c) To any other establishment set up under any Central, Provincial or State Act and whose employees are entitled to the benefits of contributory provident fund or old age pension in accordance with any scheme or rule framed under that Act governing such benefits;
(2) If the Central Government is of opinion that having regard to the financial position of any class of establishment or other circumstances of the case, it is necessary or expedient so to do, it may, by notification in the Official Gazette, and subject to such conditions, as may be specified in the notification, exempt, whether prospectively or retrospectively, that class of establishments from the operation of this Act for such period as may be specified in the notification.”
[emphasis supplied]

This Court in Regional Provident Fund Commissioner v. Sanatan Dharam Girls Secondary School 1 laid down a twin­ test for an establishment to seek exemption from the provisions of the EPF Act, 1952. The twin conditions are:
_______
1 (2007) 1 SCC 268 : (2007) 1 SCC (L&S) 167
______
First, the establishment must be either “belonging to” or “under the control of” the Central or the State Government. The phrase “belonging to” would signify “ownership” of the Government, whereas the phrase “under the control of” would imply superintendence, management or authority to
direct, restrict or regulate.2

Second, the employees of such an establishment should be entitled to the benefit of contributory provident fund or old age pension in accordance with any scheme or rule framed by the Central Government or the State Government governing such benefits.

If both tests are satisfied, an establishment can claim exemption/exclusion under Section 16(1)(b) of the EPF Act.

Applying the first test to the instant case, the Central Government has a 51% ownership in the Appellant­ Company, while the balance 49% is owned by the ONGC, a Central Government PSU.

As per Section 2(45) of the Companies Act, 2013, a “Government Company” means any company in which not less than 51 % of the paid­up share capital is held by the
Central Government. Since 51% of the shares of the Appellant­Company are owned by the Central Government, the first test is satisfied as the Appellant­Company can be termed as a Government Company under Section 2(45) of the Companies Act, 2013.
__________
2 Shamrao Vithal Coop. Bank Ltd. v. Kasargode Panduranga Maliya, (1972) 4 SCC 600
__________
With respect to the second test, it is relevant to note that the Company had its own Scheme viz. the Pawan Hans Employees Provident Fund Trust Regulations in force. The Company however restricted the application of the PF Trust Regulations to only the ‘regular’ employees. The PF Trust Regulations of the Company were not framed by the Central or State Government, nor were they applicable to all the employees of the Company, so as to satisfy the second test.

The Regional Provident Fund Commissioner, Bandra issued letter dated 24.05.2017 addressed to the Company wherein it was stated that the benefit of contributory provident fund was not being provided to contractual/casual employees of the Company; and was directed to implement the provisions of the EPF Act.

The relevant extract from the letter is set out hereinbelow:
“approximately 370­400 employees have been engaged by M/s Pawan Hans Ltd. on contract basis in various cadres.
But no social security benefit is being extended to them. The EPF & MP Act, 1952 under Section 2(f) lays down that any person employed for wages in any kind of work in or in connection with the work of the establishment and includes a worker engaged by or through a contractor. There is no distinction between a person employed on permanent, temporary, contractual or casual basis under Section 2(f) of the EPF & MP Act, 1952.
You are therefore, requested to implement the provisions of the EPF & MP Act, 1952 in respect of all the contractual/causal employees engaged by M/s Pawan Hans Ltd. who are still not getting benefits of PF and Pension.”
[emphasis supplied]

In our view, the Company does not satisfy the second test, since the members of the Respondent­Union and other similarly situated contractual workers were not getting the benefits of contributory provident fund under the PF Trust Regulations framed by the Company, or under any Scheme or any rule framed by the Central Government or the State Government. Consequentially, the exemption under Section 16 of EPF Act would not be applicable to the Appellant­ Company.

In view of the above discussion, we hold that the Company has failed to make out a case of exclusion from the applicability of the provisions of the EPF Act.

6.3 The next issue which arises for consideration is whether the members of the Respondent­Trade Union are entitled to the benefit of Provident Fund under the PF Trust Regulations or under the EPF Act.

Clause 1.3 of the Regulations would show that the PF Trust Regulations were made applicable to “all employees” of the Appellant­Company.

Clause 2.5 of the Regulations, defines an “employee”, to include any employee who is employed for wages/salary in any kind of work, monthly or otherwise, or in connection with the work of the Company, and who gets his wages/salary directly or indirectly from the Company. Clause 2.5 excludes only a person employed by or through a contractor in connection with the work of the Company, and any person employed as an apprentice or trainee.

In the present case, the Respondent­Union submitted that even though the appointment letters refer to the employees as ‘contractual’ employees, they were not engaged through any contractor. They were being paid directly by the Company, which is evidenced from the pay­ slips issued to them. It was submitted that about 250 contractual employees receive wages directly from the Company, and are eligible to be included under the PF Trust Regulations framed by the Company.

6.4 We find that the members of the Respondent­Union have been in continuous employment with the Company for long periods of time. They have been receiving wages/salary directly from the Company without the involvement of any contractor since the date of their engagement. The work being of a perennial and continuous nature, the employment cannot be termed to be ‘contractual’ in nature.

In our considered view, Clause 2.5 of the PF Trust Regulations would undoubtedly cover all contractual employees who have been engaged by the Company, and draw their wages/salary directly or indirectly from the Company.

6.5 As per Section 2(f) of the EPF Act, the definition of an ‘employee’ is an inclusive definition, and is widely worded to include “any person” engaged either directly or indirectly in connection with the work of an establishment, and is paid wages.3
___________
3 Sub­Regional Provident Fund Office v. Godavari Garments Ltd., (2019) 8 SCC 149 : (2019) 2 SCC (L&S) 483; M/s P.M. Patel & Sons and Ors. v. Union of India and Ors (1986) 1 SCC 32.
___________
In view of the above discussion, we find that the members of the Respondent­Union and all other similarly situated contractual employees, are entitled to the benefit of provident fund under the PF Trust Regulations or the EPF Act. Since the PF Trust Regulations are in force and are applicable to all employees of the Company, it would be preferable to direct that the members of the Respondent­ Union and other similarly situated contractual employees are granted the benefit of provident fund under the PF Trust Regulations so that there is uniformity in the service conditions of all the employees of the Company.

6.6 The question which now arises is the date from which the benefit of provident fund is to be extended to the contractual employees.
This Court vide Order dated 24.10.2019 had passed the following Order:

“Provident Fund is normally managed on actuarial basis; the contributions received from employer and the employee are invested and the income by way of interest forms the substantial fund through which any pay­out is made. For all these years the Fund in question was subsisting on contributions made by the other employees and, if at this stage, the benefit in terms of the judgment of the High Court is extended with retrospective effect, it may create imbalance. Those who had never contributed at any stage would now be members of the fund. The fund never had any advantage of their contributions and yet the fund would be required to bear the burden in case any pay­out is to be made. Even if concerned employees are directed to make good contributions with respect to previous years with equivalent matching contribution from the employer, the fund would still be deprived of the interest income for past several years in respect of such contributions.

In order to have clear perspective in the matter and to see if there could be any solution to the problem as posed above, we call upon the petitioner to depute a person who is well versed in the matter and who has been managing the Provident Fund Scheme of Pawan Hans Limited to have a dialogue with the respondent No.3 before 15.11.2019 (a representative of the respondent(s) is also at liberty to remain present during such discussion) so that a workable solution could then be presented by such person and the representative of respondent No.3 before us on the next occasion.
List the matter on 29.11.2019 at 10.30 a.m.”

6.7 The learned ASG submitted that no workable solution could be worked out at the meeting held between the representative of the Appellant­Company, Respondent No.3, and the representative of the Respondent­Union. The learned ASG however offered that the Appellant­Company was willing to extend the benefit under the PF Trust Regulations to the members of the Respondent­Union and other similarly situated employees, from the date of the impugned Judgment.

6.8 Respondent No.3 – the Regional Provident Fund Commissioner submitted that since the Company had remained out of the purview of the EPF Act, the direction to deposit contribution from the date of eligibility of the contractual employees till the date of remittance was not workable, and could not be sustained.

7 After hearing the parties at length, and in light of the peculiar facts and circumstances of this case, we affirm the Judgment & Order dated 12.09.2018 passed by the Bombay High Court in W.P.No.325/2017 holding that members of the Respondent­Union are covered by the EPF Act. However, we modify the direction of the High Court to grant the benefits under the EPF Act, and direct that the members of the Respondent­Union and other similarly situated contractual employees be enrolled under the Pawan Hans Employees Provident Fund Trust Regulations so that there is uniformity in the conditions of service of all employees of the Appellant­Company.

Furthermore, the direction of the High Court to pay the contribution from the date of their eligibility till the date of remittance is also modified in terms of the directions given in this Judgment.

8 We pass the following directions to effectuate the reliefs granted:
(i) The interests of justice would be best subserved if the benefit of Provident Fund is provided to the members of the Respondent­Union, and other similarly situated contractual employees, from January 2017 when the Writ Petition was filed before the High Court.
(ii) Respondent No.3 ­ the Regional Provident Fund Commissioner, Regional Office, Bhavishya Nidhi Bhawan, 341 Bandra (E), Mumbai is directed to determine and compute the amount to be deposited by the Company on the one hand, and the members of the Respondent­Union and other similar situated employees on the other hand. The computation would be required to be made for the past period i.e. January 2017 to December 2019;
(iii) The Company shall be liable to pay Simple Interest @ 12% p.a. on the amount payable by it towards contribution of provident fund for the past period, i.e., January 2017 to December 2019, as per Section 7Q of the EPF Act,1952 ;
(iv) The statement of computation made by Respondent No.3 will be placed before this Court within a period of 12 weeks from the date of this Judgment, and thereafter the matter will be listed for issuance of necessary directions, so that the amount can be remitted from the deposit made before this Court, directly to the PF Trust;
(v) The employees will be obligated to deposit their matching contribution for the past period i.e. January 2017 to December 2019, within a period of 12 weeks along with interest @ 6% p.a., after the contribution of the Company has been remitted to the PF Trust;
(vi) With respect to the period from January 2020 onwards, the Company and the members of the Respondent­Union as also other similary situated employees, will make their respective contributions as per the PF Trust Regulations;
(vii) The benefit shall not be extended to those employees who have superannuated, expired, resigned, or ceased to be in the employment of the Company on the date of this Judgment ;
(viii) We consider it appropriate to award Costs of Rs.5,00,000 (Rupees Five Lacs) to the Respondent­ Union towards litigation expenses incurred in the High Court and in this Court.
(ix) After the aforesaid amounts are disbursed, the balance amount lying deposited in this Court shall be refunded to the Appellant­Company.

The present civil appeal along with all pending applications, if any, stand disposed of.

Ordered accordingly.

…………………………………J.
(UDAY UMESH LALIT)
…………………………………J.
(INDU MALHOTRA)

New Delhi;
January 17, 2020.

The post Pawan Hans Ltd. vs Aviation Karmachari Sanghatana appeared first on B&B Associates LLP.

O R D E R

The applications for oral hearing are rejected.

The applications for stay of execution of death sentence are also rejected.

We have gone through the Curative Petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed.

.………………..……………….…….…J.
(N.V. RAMANA)
……………………………………….……J.
(ARUN MISHRA)
……………………………………….……J.
(ROHINTON FALI NARIMAN)
……………………………………….……J.
(R. BANUMATHI)
……………………………………….……J.
(ASHOK BHUSHAN)

New Delhi;
January 14, 2020.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CURATIVE PET(R) Nos.7-8/2020 in R.P.(Crl.) Nos.672-673/2017 in Crl.A. Nos.609-610/2017
VINAY SHARMA Petitioner(s)
VERSUS
THE STATE OF N.C.T. OF DELHI THROUGH SECRETARY Respondent(s)

(FOR ADMISSION and IA No.4419/2020-STAY APPLICATION and IA No.4417/2020-ORAL HEARING IA No.4417/2020 – ORAL HEARING IA No.4419/2020 – STAY APPLICATION)

WITH

CURATIVE PET(R) No.6/2020 in R.P.(Crl.) No.570/2017 in Crl.A. No. 607/2017 (II-C)

(FOR FOR STAY APPLICATION ON IA 5103/2020 FOR ORAL HEARING ON IA 5106/2020 IA No.5106/2020 – ORAL HEARING IA No.5103/2020 – STAY APPLICATION)

Date : 14-01-2020 These matters were called on for hearing today.

CORAM :
HON’BLE MR. JUSTICE N.V. RAMANA
HON’BLE MR. JUSTICE ARUN MISHRA
HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN
HON’BLE MRS. JUSTICE R. BANUMATHI
HON’BLE MR. JUSTICE ASHOK BHUSHAN

By Circulation
UPON perusing papers the Court made the following

O R D E R

The applications for oral hearing are rejected.

The applications for stay of execution of death sentence are also rejected.

The Curative Petitions are dismissed in terms of the signed order.

(SATISH KUMAR YADAV)
AR-CUM-PS

(RAJ RANI NEGI)
ASSISTANT REGISTRAR

(Signed order is placed on the file)

The post Vinay Sharma Vs The State of N.C.T. of Delhi appeared first on B&B Associates LLP.

(1) I.A. NO.30915/2019 AND 153946/2019(APPLNS. FOR DIRECTIONS AND SEEKING LEAVE TO PLACE ON RECORD ADDL. DOCUMENTS ON B/O MIDEAST INTEGRATED STEELS LTD.)

(2) I.A. NO.186810/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF M/S SARDA MINES PRIVATE LIMITED

(3) I.A. NO.157635/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF ORISSA MINING CORPORATION LIMITED

“ONLY” IN W.P.(C) NO. 114/2014 ARE LISTED TODAY.

THE NAMES OF THE FOLLOWING ADVOCATES MAY BE TREATED TO HAVE BEEN SHOWN IN THE LIST:MR. HARISH N. SALVE, SR. ADVOCATE (A.C.) MS. APARAJITA SINGH, SR. ADVOCATE (A.C.) MR. A.D.N. RAO, ADVOCATE (A.C.) MR. SIDDHARTHA CHOWDHURY, ADVOCATE (A.C.)MR. PRASHANT BHUSHAN MR. B.K. PRASADMR. GURMEET SINGH MAKKER MS. KIRTI R. MISHRAMR. MR. L.R. SINGH, ADVOCATES. )

Date : 08-01-2020 These matters were called on for hearing today.

CORAM :
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE B.R. GAVAI
HON’BLE MR. JUSTICE SURYA KANT

Counsel for the parties
Mr. Harish N. Salve, Sr. Adv. (A.C.) (N.P.)
Ms. Aparajita Singh, Sr. Adv. (A.C.)
Mr. ADN Rao, Adv. (A.C.)
Mr. Siddhartha Chowdhury, Adv. (A.C.)
Mr. Prashant Bhushan, AOR
Mr. Pranav Sachedeva, Adv.
Mr. Hemanth Pothula, Adv.
Mr. B.K. Prasad, AOR
Ms. Pinky Anand, ASG
Ms. V. Mohna, Sr. Adv.
Mr. Atulesh Kumar, Adv.
Mr. Raj Bahadur, Adv.
Mr. R.R. Rajesh, Adv.
Mr. D.V. Rao, Adv.
Mr. Tarkeshwar Nath, Adv.
Ms. Saudimini Sharma, Adv.
Mr. Hemand Arya, Adv.
Mr. Mukesh Kumar Maroria, AOR
Mr. Atmaram N.S. Nadkarni, ASG
Ms. Chinmayee Chandra, Adv.
Mr. S.S. Rebello, Adv.
Ms. Arzu Paul, Adv.
Mr./Ms. Neeleshwar Pavani, Adv.
Ms. Riya Soni, Adv.
Ms. Shivikka Agrawal, Adv.
Mr. Gurmeet Singh Makker, AOR
Ms. Kirti R. Mishra, AOR
Ms. Apurva Upmanya, Adv.
Mr. Vikas Singh, Sr. Adv.
Mr. L.R. Singh, AOR
Mr. Satwik Misra, Adv.
Ms. Udita Singh, Adv.
Ms. Deepeika Kalia, Adv.
Ms. Shweta Priya, Adv.
Mr. Vivek Singh, Adv.
Mr. Mahesh Jethmalani, Sr. Adv.
Mr. Parag Tripathi, Sr. Adv.
Mr. Gopal Jain, Sr. Adv.
Mr. Navin Kumar, AOR
Mr. Manish Kharbanda, Adv.
Mr. Saurabh Ajay Gupta, Adv.
Ms. Natasha Sehrawat, Adv.
Mr. Pranav Sood, Adv.
Ms. Priya Singh, Adv.
Mr. Karanveer Singh, Adv.
Ms. Nikita Mehta, Adv.
Mr. Vineet Kumar, Adv.
Mr. Raj Kumar Mehta, AOR
Ms. Himanshi Andley, Adv.
UPON hearing the counsel the Court made the following

O R D E R

In the course of hearing, this Court on 16.01.2019 passed an order taking cognizance of the deleterious effect of mining on vegetation, after mining activities are over. In particular, it is observed that an area which is mined results in a complete elimination of grass which in turn denies fodder to the herbivores. The only solution can be re-grassing of such mined areas. It is not in dispute that re-grassing technology is available in this country.

We see no reason why the area which has been mined should not be restored so that grass and other vegetations including trees can grow in the mining area for the benefits of animals.

We are of the view that this can be achieved by directing the Union of India to impose a condition in the mining lease and a similar condition in the environmental clearance and the mining plan to the effect that the mining lease holders shall, after ceasing mining operations, undertake re-grassing the mining area and any other area which may have been disturbed due to their mining activities and restore the land to a condition which is fit for growth of fodder, flora, fauna etc.

The Union of India may devise appropriate methods for ensuring compliance of this condition after the mining activity is over at the cost of the mining lease holders. This condition shall be in addition to those conditions which have already been imposed for achieving the same purpose under the mine closure plan. This condition shall not be imposed in derogation of any conditions which are already in force.

Order accordingly.

The Union of India will report the action taken within a period of three weeks from today.

List the matter thereafter.

I.A. NOS.30915/2019 AND 153946/2019 (APPLNS. FOR DIRECTIONS AND SEEKING LEAVE TO PLACE ON RECORD ADDL. DOCUMENTS ON B/O MIDEAST INTEGRATED STEELS LTD.

Arguments concluded.

Orders reserved.

I.A. NO.186810/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF M/S SARDA MINES PRIVATE LIMITED

Arguments concluded.

Orders reserved.

I.A. NO.157635/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF ORISSA MINING CORPORATION LIMITED

Issue notice returnable after two weeks.

In the meantime, the respondent(s) may file their respective reply affidavits, if any.

(SANJAY KUMAR-II)
COURT MASTER (SH)

(INDU KUMARI POKHRIYAL)
ASSISTANT REGISTRAR

The post Common Cause vs. Union of India appeared first on B&B Associates LLP.

Heard Sri Colin Gonsalves, learned Senior Advocate assisted by Sri Fazal Abdali, Advocate, Sri A.Q. Zaidi, Advocate and Sri Mohd. Danish, Advocate appearing on behalf of the petitioner and Sri Mohd. Aman Khan, petitioner in person, Sri Manish Goyal, learned Additional Advocate General appearing on behalf of the State and Sri Ranjan Mishra, learned counsel appearing on behalf of Union of India-respondent no.4.

The petitioner, a practicing Advocate of this Court has preferred this petition for writ to have following reliefs:-
“(i) For a writ of mandamus or any other writ, order, directing the Respondents to set up a court-monitored committee headed by a retired High Court or Supreme Court Judge that shall conduct judicial inquiry into the acts of violence and arbitrary detentions by the State Police and Paramilitary Forces in a time-bound manner;
(ii) For a writ of mandamus or any other writ, order, directing the Respondents to declare on their website the full list with names of students and residents of Aligarh Muslim University that were detained by State Police and paramilitary forces;
(iii) For a writ of mandamus or any other writ, order, directing the Respondents to provide detained persons access to their family members and to legal counsel;
(iv) For a writ of mandamus or any other writ, order, directing the Respondents to release all the students and residents so detained;
(v) For a writ of mandamus or any other writ, order, directing the Respondents to provide instant and quality medical care to students and staff detained and other injured during the violence;
(vi) For a writ of mandamus or any other writ, order, directing the Respondents to immediately cease the violence being inflicted on to the students and residents of Universities;
(vii) For a writ of mandamus or any other writ, order, directing the Respondents to quash any and all criminal proceedings initiated against students of the Universities;
(viii) For a writ of mandamus or any other writ, order, directing the Respondents to preserve the CCTV footage of all cameras in and around the Universities;
(ix) For a writ of mandamus or any other writ, order, directing the Respondents to provide adequate monetary compensation to all persons detained and/or injured by the Police and paramilitary forces;
(x) For a writ of mandamus or any other writ, order directing the Respondents to ensure the safety of all students within AMU university campus and to ensure that no student is forced to leave the campus;
(xi) For a writ of mandamus or any other writ, order directing the Respondents to ensure reopening of the University;
(xii) For a writ of mandamus or any other writ, order directing the University administration and armed forces not to take any coercive action against the students for peaceful protests;
(xiii) For a writ of mandamus or any other writ, order directing the initiation of criminal proceedings against the armed force officials who can be recognized from the videos and audios committing violence.
(xiv) For a writ of mandamus or any other writ, order directing the initiation of criminal proceedings against the officials who ordered the barbaric violence against the students.
(xv) For a writ of mandamus or any other writ, order, directing the respondents to seek written permission from the University authorities before entering the campus;
(xvi) For a writ of mandamus or any other writ, order directing the respondents to provide compensation to the students who were injured in the violence by armed forces;
(xvii) For a writ of mandamus or any other writ, order directing the respondents to provide compensation for the vehicles destroyed by the armed forces;
(xviii) to issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case, and
(xix) to award the cost of the petition to the Petitioner.”

The background to claim the reliefs above is the alleged display of police brutality upon students who were protesting the introduction of Citizenship Amendment Act, 2019.

As per the averments contained in the petition for writ, the Act of 2019 received assent of the President of India and came to be published in gazette on 12th December, 2019. A resentment was shown against the enactment aforesaid by the students in different corners of the country. At Aligarh Muslim University a huge number of students assembled at Bab-e-Syed (University gate) on 14th December, 2019 to share solidarity with the students of other Universities. The students were raising slogans against the enactment.

In the evening of 15th December, 2019 a protest was lodged by the students of Aligarh Muslim University at Library canteen. According to the petitioner, a peaceful procession of the students commenced from the library and moved towards the Bab-e-Syed through University road.

A huge contingent of local police and Rapid Action Force was deployed at the University circle. The contingent moved towards Bab-e-Syed on seeing the procession of the students. The contingent aforesaid, as per the petitioners, provoked the students by different means including the intentional utterance of abusive words.
The contingent of local police and the Rapid Action Force was said to be armed with several equipments and weapon of repression and those were used too. The students were heavily injured by the brutal lathi charge, rubber bullets and pellets.

It is asserted that to disburse assembly of the students the State force used repressive means recklessly and inappropriately. The contingent of police forcefully entered in different parts of the University including library, hostels, classrooms, offices, etc. and brutally behaved with students, consequent to that several students suffered serious injuries. The police officials intentionally assaulted the students and also vandalized the vehicles parked in the University campus near library. The students in a big number were detained at different places by the State agencies and no medical aid was provided to them. The detained students were also alleged to be brutally tortured. On 16th December, 2019, the Registrar of the University issued notices to all the students to vacate the hostels though no reason was there to do so.

According to the petitioner, several photographs of brutal repression made by the State force have been taken and video thereof too has been recorded. Certain photographs are also placed on record.

Sri Colin Gonsalves, learned Senior Advocate while pursuing all the reliefs claimed in the petition for writ emphasized for constituting a Special Investigating Team consisting of independent police officials to have fair and objective investigation in the matter.

The Inspector General, Law & Order, U.P., Senior Superintendent of Police, Aligarh Range, Aligarh and Aligarh Muslim University, Aligarh through its Vice-Chancellor have filed counter to the petition today.

As per counter filed on behalf of Inspector General, Law & Order, U.P. and Senior Superintendent of Police, Aligarh Range, Aligarh, the contents of the petition for writ do not depict true facts. According to them, the students in violation of the precautions taken as per Section 144 of the Code of Criminal Procedure, 1973 gathered at University circle on 10th December, 2019. On 12th December, 2019, the University authorities noticed hindrance by some of the students in their routine functioning. Looking to overall circumstances, the Registrar, Aligarh Muslim University requested the District Magistrate, Aligarh to take appropriate steps so as to uphold sanctity of an order dated 17th May, 2019 passed by the High Court in Writ Petition No.16633 of 2019.

An another letter was sent by the Registrar of the University to the District Magistrate, Aligarh on 13th December, 2019 with a request to deploy adequate security forces outside the administrative block of the University to prevent any untoward incident. On 13th December, 2019, certain memorandums addressed to His Excellency, The President of India were tendered by the students as well as on behalf of Aligarh Muslim University Teachers Association to the Additional District Magistrate (City) and Superintendent of Police (City), who were present outside the University campus.

On 14th December, 2019 also a delegation of the students and Teachers of the Law faculty handed over a memorandum to Additional District Magistrate (City). The University administration on 15th December, 2019 also demanded adequate forces to maintain public order, accordingly, the force was deployed close to the University campus by the district administration. On 15th December, 2019, the district administration received certain intelligence inputs and also information from the Proctor of the University about assembly of the students inside the University campus and their march towards Bab-e-Syed apprehending unwarranted incidents. The force was deployed by the district administration being necessary looking to the tense prevailing. The police force deployed at administrative block kept restrain and requested the students to refrain themselves from illegal activities. According to the respondents, the students at that time pelting stones on the force, as well as on the public property. The gathering ignored the request and continued with violent activities. A water cannon then was used to disburse the gathering and also to prevent any violent happening by the mob. Tear gas shelling was also made at the spot, looking to the need thereof. The district administration noticed that the gathering taking advantage of darkness started pelting stones vigorously from various directions and that enormously destroyed University property. The University administration in such circumstances again made a request to take appropriate action. Having no other option, the district administration decided to enter into University campus to disburse gathering and preventing the property from being damaged. In the course of action, 26 persons were arrested and some of them were found injured. According to the respondents, no lethal weapon was used by the police force.

Along with counter affidavit, the respondents have also placed on record two compact disks said to be containing video footage of the incident.

It is submitted by Sri Manish Goyal, learned Additional Advocate General that the action was taken to prevent loss to public and public property at large. It is asserted that the right available under Article 19 of the Constitution of India is only to assemble peacefully and without arms. But in the incident under consideration the assembly was absolutely unlawful and was abating for violence at large. As such, whatever steps and actions taken by the state or its Officers’s is justifiable.

Reliance is placed upon the judgment of Supreme Court in Bimal Gurung Vs. Union of India and others reported in 2018 (15) SCC 480 to substantiate the contention that Article 19(1)(a) to (c) does not cover violent protests affecting or threatening rights of others.

Response to the notice has also been filed on behalf of Aligarh Muslim University, Aligarh. According to it, the police entered in the University campus being called by the University authorities looking to circumstances then prevailing. The hostels were also ordered to be vacated as the winter vacations were preponed. According to the University, the demonstration on 14 & 15 December, 2019 was having presence of several persons who are not students of the University. Out of the 26 persons detained, at least 15, as per the University are not its students.

No rejoinder has been filed on behalf of the petitioner. However, it is stated that the averments contained in the petition for writ and the photographs annexed thereto speak in volumes about high handedness of police authorities and that is nothing but atrocity on innocent students. It is asserted that the photographs and the videos available reflect predetermined brutality on the part of the State agencies.

Sri Colin Gonsalves, learned Senior Advocate stated that in entirety the demand of the petitioner is to have a complete investigation in the matter as there is apparent violation of human rights and also commission of cognizable crime.

During the course of hearing, it is also brought to notice of the Court that against the Citizenship Amendment Act, 2019, a protest was also made by the students of Jamia Milia Islamia University, New Delhi. The students and certain faculty members of Jamia Milia Islamis University, New Delhi have approached the National Human Rights Commission to have a complete inquiry and also investigation pertaining to the incidents taken place, where also the allegation is against the Delhi Police for causing atrocities on students.

Sri Colin Gonsalves, learned Senior Advocate while referring the observations made by the Supreme Court Extra Judicial Execution Victim Families Association and another Vs. Union of India and others reported in 2017 (8) SCC 417 states that the inquiry or investigation by the National Human Rights Commission is of civil nature and that too is not an effective measure to bring the culprits of doing wrong to board. According to him, looking to the facts of the case, it would be appropriate to constitute a Special Investigating Team to investigate the entire matter. He has suggested names of three former Officer of Uttar Pradesh Police to be nominated as member of the SIT.

We have considered all aspects of the matter.

Section 12 of Protection of Human Rights Act, 1993 charges National Human Rights Commission as well as the State Human Rights Commission with duty for proper implementation as well prevention of violation of the human rights and fundamental freedoms available to every human being. Under the Act of 1993 the Commission may inquire suo motu or on a petition relating to the students for violation of human rights or abatement thereof or negligence in prevention of such violation by a public servant.

Under the Act of 1993 a complete mechanism is given for having inquiry as well as investigation under Section 13 and 14 respectively. The procedure for such inquiry is given under Chapter IV of the Act and as per Section 18, the Human Rights Commission may take several actions during and after inquiry. The Commission after holding an inquiry may recommend to the concerned Government or authority to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against concerned person or persons. It may also recommend to take such further action as it may think fit.

It would also be appropriate to mention that the Commission as per Section 18(b) of the Act of 1993 approach the Supreme Court or the High Court concerned for such directions, orders or writs as the Court may deem necessary. As per clause (b) of Section 18, it is for the Commission to approach Supreme Court or the High Court concerned to have necessary directions, orders or writs and that is by way of judicial proceedings. The power aforesaid can also be exercised by the High Court by suo motu calling upon report of inquiry or the recommendations made by the Commission.

The facts of the instant case indicate alleged violation of human rights and also alleged negligence in the prevention of such violation. We have not looked into the video footage, which are said to be available with the petitioner and compact disks, which are placed on record by the respondents along with counter. However, the photographs annexed with the petition reflect certain serious happenings which are termed by the petitioner as brutal, violation of human rights that also amounts to commission of cognizable crime. The narration of facts certainly demands a probe.

Looking to the powers of the Human Rights Commission discussed above, at this stage, we are not inclined to constitute any Special Investigating Team but to get the entire matter inquired by the National Human Rights Commission. We would have an inquiry by the State Human Rights Commission also but in light of the fact that the National Human Rights Commission is already undertaking inquiry relating to similar allegations on a complaint said to be filed by the students and some faculty members of the Jamia Milia Islamia University, New Delhi, we deem it appropriate to have an inquiry in this matter too through the National Human Rights Commission.

The National Human Rights Commission is not a party to the writ proceedings but being a statutory body to protect human rights, we consider it appropriate to request the Commission to have an inquiry relating to the issues raised in this petition for writ.

Accordingly, the National Human Rights Commission, New Delhi is requested to have a complete inquiry or investigation as it deem fit in the matter. The Commission for the purpose of inquiry/investigation shall treat memo of this petition for writ as complaint submitted to it.

An Officer authorized by the Chief Justice of this Court shall present a photostat copy of the memo of writ petition (complaint) and photostat copies of all other record excluding the compact disks before the Registrar, National Human Rights Commission, New Delhi on or before 9th January, 2020.

The Commission is requested to complete the process of inquiry/investigation expeditiously as far as possible within a period of one month from the date of presentation of the complaint by the Officer authorized. The Commission is also requested to convey its findings and recommendations, if any, to this Court immediately after conclusion of the inquiry/investigation. The petitioner or his representative, as well as representative of the State of Uttar Pradesh, shall appear before the Registrar, National Human Rights Commission, New Delhi on 10th January, 2020 to have the schedule of the proceedings that is to be settled by the National Human Rights Commission.

Let this petition for writ be listed for further orders on 17th February, 2020.

Order Date :- 07.01.2020
Bhaskar

(Vivek Varma, J.)
(Govind Mathur, C.J.)

The post Mohd. Aman Khan Vs Union Of India and Others appeared first on B&B Associates LLP.