Know Thy Judge | Justice S. Abdul Nazeer
“Planned development of the city is a sine qua non for its health and growth, given the rapid increase in population of the city on account of influx of thousands of people from other parts of the country.”
– Justice Nazeer
Vinayak House Building Cooperative Society Ltd. v. State of Karnataka,
Justice S. Abdul Nazeer was born on January 05, 1958 in Beluvai near Moodbidri. He studied law in Sri Dharmasthala Manjunatheshwara Law College, Mangalore and was enrolled as an advocate on 18.02.1983. He practiced for 20 years in the Karnataka High Court. He was appointed as an additional judge of the Karnataka High Court on May 12, 2003 and was made a permanent judge in September 2004. He was elevated as a judge of the Supreme Court on February 17, 2017.
♦Did You Know? Justice S. Abdul Nazeer is the third judge to be directly elevated to the Supreme Court without serving as a Chief Justice of a High Court.
Notable Judgements at Supreme Court
Hemraj Ratnakar Salian v. HDFC Bank Ltd., 2021 SCC OnLine SC 611
The Division Bench of S. Abdul Nazeer* and Krishna Murari, JJ., addressed a pertinent issue of whether the rent act would come to the aid of a “tenant in sufferance” and held that “…Rent Act would not come to the aid of a “tenant-in-sufferance” visàvis SARFAESI Act due to the operation of Section 13(2) read with Section 13(13) of the SARFAESI Act.”
Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC OnLine SC 362
“Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward.”
In a big development, the 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has quashed the much in debate Maratha Reservation and has held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 [2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217.
The Constitution Bench had clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. Hence, the Commission has completely erred in understanding the ratio of the judgment.
“The Marathas are dominant forward class and are in the main stream of National life.”
Beghar Foundation v. K.S. Puttaswamy, (2021) 3 SCC 1
Dismissing the review petition, the Constitution Bench comprising of A.M. Khanwilkar*, D.Y. Chandrachud**, Ashok Bhushan*, S. Abdul Nazeer* and B.R. Gavai*, JJ., addressed the review petition against the final verdict in K.S. Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1, and held that Section 7 of the Aadhaar Act had elements of a ‘Money Bill’, and the other provisions were incidental to the ‘core’ of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a ‘Money Bill’ under Article 110(1).
K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1
“The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.”
Justice S.A. Nazeer was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that right to privacy is an intrinsic part of right to life and liberty under Article 21 and freedoms guaranteed under Part III of Constitution of India.
N. Jayasree v. Cholamandalam Ms General Insurance Co. Ltd., 2021 SCC OnLine SC 967
The Division Bench of S. Abdul Nazeer* and Krishna Murari, JJ., held that neither the percentage of deduction for personal expenses be governed by a rigid rule or formula of universal application nor does it depends upon the basis of relationship of the claimant with the deceased.
“It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance.”
Neelima Srivastava v. State of U.P., 2021 SCC OnLine SC 610
A Division Bench of S. Abdul Nazeer and Krishna Murari*, JJ., held that there is a distinction between overruling a principle and reversal of the judgment. The Supreme Court reaffirmed the settled position of law by explaining that:
“Mere overruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. “
Kiran Devi v. Bihar State Sunni Wakf Board, 2021 SCC OnLine SC 280
The 3-judge bench comprising of Ashok Bhushan, SA Nazeer and Hemant Gupta*, JJ has held that there can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise.
Assam Industrial Development Corp. Ltd. v. Gillapukri Tea Co. Ltd., 2021 SCC OnLine SC 44
In a petition regarding land acquisition by government of Assam for setting up a plastic park, the Division Bench of S. Abdul Nazeer* and Sanjiv Khanna had held,
“Once the award has been approved, compensation has been paid and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of Land Acquisition Act, 1894.”
United India Insurance Co. Ltd. v. Satinder Kaur, 2020 SCC OnLine SC 410
The 3-judge bench of SA Nazeer, Indu Malhotra* and Aniruddha Bose, JJ., while hearing an issue relating to determination of compensation in a motor vehicle accident case, took note of the fact that several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection and directed the Tribunals and High Courts to award compensation for loss of consortium, which is a legitimate conventional head.
“There is no justification to award compensation towards loss of love and affection as a separate head.”
M. Siddiq (Ram Janmabhumi Temple-5 J.) v Suresh Das, (2020) 1 SCC 1
“The court does not decide title on the basis of faith or belief but on the basis of evidence.”
The 5-judge bench of Ranjan Gogoi, CJ, S.A. Bobde, Dr. D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer, JJ, held that the Court must ensure that a wrong committed must be remedied. It was further held that the Court cannot entertain or enforce rights to the disputed property solely based on the existence of an underlying temple dating to the 12th Century AD. Even though the Hindus were able to establish possessory title to the disputed property on a preponderance of probabilities, justice would not prevail if the Court overlook the entitlement of the Muslims.
“The law provides us with parameters as clear but as profound as ownership and possession. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property.” Read More…
Justice Nazeer who was on the 3 judge bench comprising of Dipak Misra, CJ., Ashok Bhushan, J. and himself hearing an appeal to the Ayodhya title dispute, dissented with the majority judgment on one point that a mosque is not an essential feature of Islam and stated that the following issues need to be referred to Constitutional Bench:
“(a) Whether in the light of Shirur Mutt and other aforementioned cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?
(b) Whether the test for determining the essential practice is both essentiality and integrality?
(c) Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?
(d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?” [M. Siddiq v. Suresh Das, (2019) 18 SCC 631]
Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312
“Division of Society based on birth and the calling/profession of a person has continued to dominate Hindu thinking and way of life and is perhaps some of the thorny problems inherited by the British Administration which had tried to resolve the same by giving legal recognition to what came to be termed as the “depressed classes”.
A 5-judge bench of Ranjan Gogoi*, N.V. Ramana, R. Banumathi****, M.M. Shantanagoudar, S. Abdul Nazeer, JJ., while deciding the issue whether a person belonging to a Scheduled Caste in a particular State would be entitled to benefits\concessions in relation to employment mater which are allowed to Scheduled Caste candidate in any other State, held that person belonging to SC/ST in one State cannot be deemed to be SC/ST person in any other State of purpose of employment or education.
“A person who is recognised as a member of Scheduled Castes/Scheduled Tribes in his original State, will been titled to all the benefits of reservation under the Constitution in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory.”
The Court emphasizing on the federal nature of the Constitution of India, discussed about the importance of constitutional provisions relating to services and observed that
“The federal nature of the Constitution finds broad manifestation in two principal areas i.e. division of legislative power and exercise thereof by the Union and the constituent States and secondly, which is more relevant and important to the subject in hand, is the constitutional provisions relating to services under the Union and the States as dealt with in Part XIV of the Constitution.”
Shayara Bano v. Union of India, (2017) 9 SCC 1
“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”
A Constitution Bench of the Supreme Court has held by 3:2 majority that the practice of Triple Talaq is unconstitutional and violative of Articles 14 and 15 of the Constitution.
The Bench comprising of JS Khehar**, CJI ., Kurian Joseph*, Rohinton Fali Nariman***, Uday Umesh Lalit and Abdul Nazeer, JJ. held that the Triple Talaq is manifestly arbitrary because in this form of Talaq “the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it”. Therefore, Triple Talaq is in violation of Article 14 of the Constitution of India.
Justice Nazeer and the then Chief Justice Khehar dissented with the majority judgement upholding the constitutionality of Triple Talaq. They observed that
“Muslim ‘personal law’ – ‘Shariat’ is not based on any State Legislative action, we have therefore held, that Muslim ‘personal law’ – ‘Shariat’, cannot be tested on the touchstone of being a State action.”
According to them the authority to strike down law on Triple Talaq is with the Parliament and not with the Supreme Court and they directed the Parliament to draft a law on Triple Talaq and proposed placing an injunction on it for six months, until the Parliament’s decision.
Mahender Chawla v. Union of India, (2019) 14 SCC 615 [Witness Protection Scheme, 2018]
“In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.”
“Witnesses are eyes and ears of justice” – Bentham
A Division Bench comprising of A.K. Sikri* and S. Abdul Nazeer, JJ., while emphasizing on the role of witness in decision making process.
“The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They are, therefore, backbone in decision making process.”
observed that the conditions of witnesses in Indian Legal System has become ‘pathetic’. It has become frequent happening were witnesses have suffered traumatic experience and turned hostile. Thus, creating problems of low convictions which is a serious blow criminal justice system. There is a paramount need to have witness protection scheme.
The Court after considering various authorities cited as well as Witness Protection Scheme, 2018 gave certain directions to be followed by the Government.
Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
“The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcener 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.”
The 3-judge bench of Arun Mishra*, S.A. Nazeer and M.R. Shah, JJ., held that daughter’s right in coparcenary property is by birth and it is not necessary that the coparcener father should be living when the Hindu Succession (Amendment) Act, 2005 came into force. If the daughter is alive on the date of enforcement of (Amendment) Act, 2005, she becomes a coparcener with effect from date of Amendment.
“It is by birth that interest in the property is acquired… 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.”
Bharati Reddy v. State of Karnataka, (2018) 12 SCC 61
“Power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded.”
A Division bench headed by Justice S. Abdul Nazeer*, while allowing the writ petition Panchayat challenging the election of the Adhyaksha of the Zilla Panchayat filed by the voters who are not the members of the Zilla, observed that
“We are of the view that a voter in a particular panchayat cannot be rendered remediless if he is aggrieved by the election of the Adhyaksha of the Panchayat.”
The Court held that the judicial review is a part of the basic structure of the constitution and cannot be ousted by Article 243-O of the Constitution of India.
UMC Technologies Private Limited v. Food Corporation of India, 2020 SCC OnLine SC 934
“An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent.”
A Division bench presided by Justice S. Abdul Nazeer*, while upholding the order terminating a contract of service with the appellant and to blacklist the appellant from participating in any future tenders of the Corporation for a period of 5 years, opined that the show cause notice constituting the basis of a blacklisting order must spell out clearly the intention on the part of the issuer of the notice to blacklist the noticee.
“…it is the first principle of civilised jurisprudence that a person against whom any action is ought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself.”
Hospitality Association of Mudumalai v. In Defence of Environment and Animals, (2020) 10 SCC 589
“The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation.”
A 3-judge bench comprising of S A Bobde CJ., S. Abdul Nazeer*, Sanjeev Khanna JJ., upheld the Madras High Court order directing resort owners and other private land owners in Mudumalai to vacate and hand over possession of land falling within the notified elephant corridor to Nilgiris Collector and observed that
“The ever-growing need for land, infrastructure and energy requirements of our large population have slowly fragmented the elephant’s natural spaces which are now surrounded by human habitation, agriculture, mining, roads and railways….. These corridors aid this process by helping different elephant populations to intermingle, which is essential for retaining the vigour of the species and ensuring its long-term survival. By identifying and nurturing such corridors, deadly confrontations between humans and elephants can be avoided, in addition to safeguarding the welfare of the wildlife.”
Raja v. State of T.N., (2020) 5 SCC 118
“The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge.”
While deciding whether the appellant has made the confession voluntarily and truthfully for the offences under TADA Act, 1987 and Explosive Substances Act, 1908, a Division bench comprising of S. Abdul Nazeer* and Deepak Misra JJ., summarising the law regarding when conviction is permissible on basis of confession to police, held that “It is wellsettled that a confession which is not free from doubt about its voluntariness, is not admissible in evidence. A confession caused by inducement, threat or promise cannot be termed as voluntary confession.”
The Court also explained about the admissibility of confession of a coaccused and opined that
“Section 30 of the Indian Evidence Act mandates that to make the confession of a coaccused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a coaccused is not at all admissible in evidence”
Notable Judgements at High Court
Pilla Akkayyamma v. Channappa, 2015 SCC OnLine Kar 8226
“Animus possidendi as is well known, is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose.”
Justice Abdul Nazeer, while deciding a suit for possession on the basis of title, held that the defendants have failed to establish that they have adverse possession in respect of the said properties. The Court while deciding the matter opined that
“The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person, who does not acknowledge others’ rights but denies them. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Mere possession of the land would not ripen into possessory title. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. Occupation only implies bare use of the land without any right to retain it.”
♦Did You Know? The 5-judge bench in Ram Janmabhumi Temple Case applied the Adverse Possession Rules as discussed in this case.
K. Raju v. Bangalore Development Authority, 2010 SCC OnLine Kar 4322
“…the power to cancel the deed vests with a Court and it cannot be exercised by the vendor of a property.”
Abdul Nazeer J., while hearing a petition filed challenging the cancellation of a ‘G’ category site involving former minister Kumar Bangarappa, discussed about execution and cancellation of sale deed and observed that
“…when the sale deed executed and registered, the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance.”
The Court held that State Government has no power or authority to direct the Bangalore Development Authority to allot sites under the Bangalore Development Authority Act, 1976 or the rules.
Noel Lewis Pinto v. Shalet D’souza, 2017 SCC OnLine Kar 367
A Division bench of S. Abdul Nazeer and K.S. Mudagal JJ., while upholding the judgment of trial Court awarding alimony of Rs. 7,50,000/- to the wife, observed that thought the respondent restricted his appeal only to the relief of alimony, but the findings of trial Court that the respondent is guilty of desertion, cruelty, rape, sodomy and bestiality will still operate against him.
Divya Ramesh v. N.S. Kiran, 2017 SCC OnLine Kar 761
A Division bench of S. Abdul Nazeer and K.S. Mudagal JJ., observed that giving regard to the up-bringing, level of sensitivity, educational, family and cultural background, financial position and social status of the petitioner, the conduct of the respondent amounts to cruelty and cannot be called as mere abusing, shouting or nagging or a normal wear and tear of a marital life. Moreover, when the respondent tried to snatch means of sustenance of the petitioner, it amounted to deprivation of her right to life which amounts to violation of human rights
Allowing the petition of the appellant under Section 13(1)(i)(a) of The Hindu Marriage Act, the Court held that he approach of the trial Court in appreciating the evidence with reference to Section 13(1)(1a) of the Act was incorrect and directed the respondent to pay permanent alimony of Rs. 50,00,000/- to the petitioner and maintenance of Rs. 50,00,000/- to his daughter.
Deepak Apparels (P) Ltd. v. City Union Bank Ltd., 2016 SCC OnLine Kar 686
While deciding the present petition wherein the issue was that whether a writ petition challenging an order passed by the Debts Recovery Tribunal (DRT) while disposing an appeal filed under Section 17 of the SARFAESI Act, 2002, is maintainable, especially when Section 18 of the 2002 Act offers the alternative remedy, a three judge Bench comprising of S.A. Nazeer, A.B. Hinchigeri and A.N. Venugopala Gowda*, JJ., held that unless the Court is convinced that a case falls under exceptional circumstances, any writ petition challenging the order passed by the DRT while exercising its jurisdiction under Section 17, cannot be entertained by the High Courts in the light of the mandate of Article 141 of the Constitution.
Vidya Ramakrishnaiah v. R.N. Vikram, 2004 SCC OnLine Kar 360
“…when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life.”
V. Bhagat v. D. Bhagat, (1994) 1 SCC 337]
A Division bench presided by Justice S. Abdul Nazeer, deciding whether the conclusion reached by the Family Court that the respondent has made out a case for dissolution of marriage on the ground that the appellant has treated him with cruelty, held that the Family Court was justified in recording with finding that the appellant had treated the respondent with cruelty and it is clear that the appellant is not interested in retaining the marriage.
Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd.
* Judge who has penned the judgment.
** Judge who has penned the dissenting opinion
*** Judge who has penned the concurring opinion
**** Judge who has penned a partly concurring and partly dissenting opinion.