Andhra Pradesh High Court
Case BriefsHigh Courts

   

Andhra Pradesh High Court: In a case where the complainant alleged offence under Section 376 Penal Code, 1860 (‘IPC') and bail is sought in the instant petition, Ravi Cheemalapatti, J. granted bail to the petitioner accused as alleged sexual relationship was consensual in nature and perusal of records showed that when the relationship eventually did not work out, complaint was filed alleging serious offences.

The complainant alleged that the petitioner, on the pretext of love and marrying the de facto complainant, took her to his residence at Gollapudi, Krishna District with the consent of his parents and exploited her sexually. She was also threatened and abused by the friends of the petitioner as alleged in the complaint. The accused was thereby arrested and has been languishing in jail since 15-06-2022.

Thus, instant criminal petition was filed under Sections 437 & 439, Criminal Procedure Code (‘CrPC'), seeking regular bail, by the petitioner/ Accused 1 in crime No. 340 of 2022 of Bhavanipuram Police Station, Vijayawada City, registered for the offences punishable under Sections 376 (2)(n), 417, 420, 323, 384, 506 read with 109 IPC.

The Court observed that on perusal of the record it is clear that there was consent between the de facto complainant and the petitioner and it is also prima facie evident that when the de facto complainant felt that the relationship between her and the petitioner is not going to work out, she filed the present complaint.

Placing reliance on Ansaar Mohammad v. State of Rajasthan, 2022 SCC OnLine 886, the Court noted that when the complainant is willingly stayed and had relationship, if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) of IPC. Thus, the Court categorically remarked this complaint was lodged when the relationship between the de facto complainant and the petitioner is not working out.

Thus, the Court granted bail subject to the following conditions:

(i) The petitioner shall be released on bail on his executing self-bond for Rs.25,000/- (Rupees twenty-five thousand only) with two sureties for a like sum each to the satisfaction of the learned Chief Metropolitan Magistrate, Vijayawada, NTR District;

(ii) The petitioner shall appear before the Station House Officer, Bhavanipuram Police Station, Vijayawada City, once a week i.e., every Sunday between 10.00 a.m. and 02.00 p.m. till filing of the charge sheet; and

(iii) The petitioner shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt to influence the witnesses and shall not tamper the evidence and shall co-operate with the investigation.

[Jatoth Aditya Rathod v. State of Andhra Pradesh, Criminal Petition No. 5704 of 2022, decided on 12-08-2022]


Advocates who appeared in this case :

Arun Kumar R, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that as per Rule 16 of the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012, a candidate does not have right to claim any appointment to the post which remained unfilled in absence of provision for waiting list.

In the case at hand, the selection process was carried out by the State of Andhra Pradesh for recruitment of teachers. 33 posts were notified and therefore the recruitment process was started for the notified 33 vacancies. The merit list/select list of 33 candidates was published.  However, one of the selected candidates did not appear for counselling and therefore, one post remained vacant. The appellant being the next meritorious candidate, claimed the appointment to the unfilled post.

While the A.P. Administrative Tribunal allowed the said claim, the Andhra Pradesh High Court set aside the order passed by the Tribunal and held that considering the relevant statutory provisions and the Guidelines for the purpose of preparation of the select list, the appellant shall not have any claim to the post, which remained unfilled, as there was no provision for the waiting list.

On a fair reading of Rule 16 of the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012 read with the Guidelines referred to hereinabove, the Supreme Court observed that once the final selection list is prepared, there shall be no waiting list and posts, if any, are unfilled for any reason whatsoever, shall be carried forward for future recruitment as per sub-Rule (5) of Rule 16 of the Rules, 2012.

Hence, as there was no requirement of preparation of a waiting list, the appellant claiming to be the next in the merit cannot claim any appointment as his name neither figured in the list of the selected candidates nor in any waiting list as there was no provision at all for preparation of the waiting list. Sub-rule (5) of Rule 16 is very clear. Therefore, the post that remained unfilled due to one of the candidates in the final list did not appear for counselling and/or accepted the employment has to be carried forward for the next recruitment.

The Court held that,

“In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment. The appellant herein, thus, had no right to claim any appointment to the post which remained unfilled.”

[Vallampati Sathish Babu v. State of Andhra Pradesh, 2022 SCC OnLine SC 470, decided on 19.04.2022]


*Judgment by: Justice MR Shah


Counsels

For appellant: Senior Advocate V. Mohan

For State: Advocate Mahfooz Ahsan Nazki

Case BriefsSupreme Court

Supreme Court: Interpreting the provisions of the Andhra Pradesh Tenancy (Andhra Area) Act, 1956, the bench of UU Lalit and S. Ravindra Bhat*, JJ has laid down the twin conditions that make a valid surrender of tenancy,

  • firstly, three months’ notice in writing to the landlord, and the Special Officer about the intention to surrender the tenancy, and
  • secondly, satisfaction recorded by the Special Officer in an order, after due inquiry about the voluntary nature of the surrender of tenancy.

The Court explained that Section 13 of the Act enacts that, notwithstanding anything contained in Sections 10, 11 and 12, a landlord cannot terminate the tenancy and evict his cultivating tenant except by an application made in that behalf to the Special Officer on the grounds mentioned in that section and if the cultivating tenant intends to surrender his tenancy the procedure prescribed by Section 14 of the Act has to be followed.

Thus, as a matter of law, the requirement of notice for the prescribed period of three months, to the landlord, and the concerned revenue official is mandatory. This provision, in the form of a procedure enacted for the welfare and protection of a tenant has to be construed in its literal and plain terms. The material phrase in Section 14 (1) is that “the surrender of such holding shall take effect only after it is accepted by the Special Officer on being satisfied, after making such inquiry as he thinks fit, that such surrender is voluntary and genuine.”

The Court, hence, held that not following the prescribed procedure, invalidates the so-called surrender.


Important Rulings


Adapala Subbaiah vs. Shaik Hasan Saheb, 2006 SCC OnLine AP 943

“As per that Section 14, surrender of holding by a tenant can only be at the end of any agricultural year, after giving his landlord and the Special Officer at least three months’ notice expiring with the end of such agricultural year. ‘Agricultural year’ is defined in Section 2(a) of the Act as the year commencing on the 1st day of June or such other date as may be notified by the Government in the Andhra Pradesh Gazette in respect of any locality having regard to the usage or custom of the locality in respect of the commencement of agricultural operations therein. If the respondent really had cultivated the land of appellant and had vacated the same in 1981-82, in view of Section 14 of the Act, he should have given a notice in March 1981 both to the appellant and the Special Officer intimating them about his intention to vacate the land. It is not even the case of appellant that any such notice was given by the respondent. When the tenancy Act confers special rights including the right to purchase the land is given to the tenant, no ordinary prudent tenant would vacate the land that too without following the procedure prescribed in the Act. Therefore, the contention of the appellant that the respondent took the land on lease for only one year and vacated it at the end of the year is difficult to be believed.”

Mygapula Venkateswara Rao vs. Ponangi Venkataraju, 1990 SCC OnLine AP 26

“This requirement of giving notice before three months is stipulated with a view to safeguard the interests of the tenant So long as the surrender as contemplated under Section 14 of the Act has not been completed and final order has been passed in pursuance of an oral or written agreement if any entered into between the landlord and the tenant, it cannot be said to be a final one. Unless and until final order has been passed with regard to the surrender by the Special Officer under Section 14 of the Act, the relationship of landlord and tenant cannot be said to have been extinguished.”

[Musunuri Satyanarayana v. Dr. Tirumala Indira Devi, 2021 SCC OnLine SC 984, decided on 27.10.2021]


Amicus Curiae: Advocate Sridhar Potaraju


*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

Case BriefsHigh Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., expressed that,

“If a party to the document wants to annul the document, he has to file a suit under Section 31 of the Specific Relief Act before the competent Civil Court and if, third party wants to annul the document, he has to approach the competent Civil Court and seek relief under Section 34 of the Specific Relief Act.”

Murthy and Sodemma were husband and wife with no children. Murthy was the absolute owner of agricultural land and a house, he had alienated his entire property to his wife during his lifetime.

Sodemma who was the maternal aunt of the petitioner, bequeathed the said property to him as he had taken care of their welfare at the old age. Therefore, petitioner became the absolute owner and possessor of the said property as per the registered Will deed executed by Sodemma.

Respondent 15, son of younger brother of Murthy with a mala fide intention to become the owner of Murthy’s property hatched a plan and fabricated an adoption deed to claim that Murthy and Sodemma adopted respondent 14 and got the signature of Murthy and Sodemma on the said fabricated deed by fraud and misrepresentation.

Later, in the year 2002, respondent 15 fabricated unregistered agreement of sale on the blank stamp papers signed by Murthy having believed him.

Respondent 14 filed for partition of the above-mentioned property by claiming that he is adopted son of Murthy and Sodemma.

Respondent 15 also filed for specific performance of unregistered sale agreement alleged to have been executed by Murthy after lapse of more than 17 years from the date of alleged execution of the said unregistered agreement. Murthy and Sodemma contested both the suits and denied the execution of both the fabricated adoption deed dated 24.05.1993 and alleged unregistered agreement of sale.

Further, it was submitted that during the pendency of both the said suits, respondent 17, the then Minister for Animal Husbandry alleged to have purchased the property, which is the subject matter of those two suits, and started construction of palatial building in the subject property and he by abusing his power as the Minister for Animal Husbandry made the authorities concerned to issue antedated permissions in contravention of Rules.

This Court had directed that there shall not be any construction on the subject property.

Crux of the Matter

Alleged playing of fraud on Sub-Registrar in mutating the name of respondents 14 and 15,  registration of property in the name of respondent 16 allegedly at the instance of respondent 17.

Petitioners claim was that when the decree was passed, appeal were pending against both the decrees and common judgment, execution of sale deed by respondents 14 and 15 in favour of respondent 16 allegedly at the instance of respondent 17 deviating the decree was serious illegality and it amounted to ‘fraud’.

Tahsildar, respondent 8 was not supposed to mutate the names of respondents 14 and 15 and only due to influence of respondent 17.

Petitioner claimed that the very mutation of the name of respondents 14 and 15 in the revenue record, now mutated the name of respondent 16 after completion of sale transaction, registered document was tainted by ‘fraud’.

Analysis, Law and decision

To constitute fraud, there must be a suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; any such act or omission as the law specially declares to be fraudulent. 

In the present matter, Court stated that,

In the absence of any interim direction, registration of a document when presented for registration satisfying the requirements under the Stamp Act and Registration Act is justified.

 Court added that Registrar is bound to register the document presented for registration unless there is prohibition from registration of such document pertaining to the land covered by Section 22A, 35 (3) and Section 71 of the Registration Act. But no such ground was raised in the present matter.

In Court’s opinion, execution of registered sale deed by respondent 14 and 15 in favour of respondent 16 by playing fraud was purely a mixed question of fact and law, such a question cannot be decided in writ petition while exercising power under Article 226 of the Constitution of India.

Supreme Court in Satya Pal Anand v. State of M.P., AIR 2016 SC 4995, held that “a party aggrieved by registration of a document is free to challenge its validity before a competent Civil Court.”

High Court held that while exercising jurisdiction under Article 226, this Court cannot annul document on the ground of ‘fraud’ and ‘misrepresentation’ since they are both mixed questions of fact and law, such roving enquiry cannot be conducted by the Constitutional Court to issue a writ of Mandamus as it is an extraordinary and discretionary relief.

When the documents are presented for registration before the Sub-Registrar, his duty is to register the same subject to any bar contained in any law and satisfying the requirements under the provisions of the Stamps and Registration laws. Such registration of document is nothing but discharging public duty.

Therefore, registration of document while discharging public duty by public officer cannot be said to be fraudulent act and such act will not attract the definition of fraud under Section 17 of the Indian Contract Act.

When can a document be cancelled?

It is settled law that the document can be cancelled only by filing suit before the Civil Court under Section 31 of the Specific Relief Act by a person, who is a party to the document.

If a third party intended to annul the document, he has to file a suit to declare the suit document as illegal and not binding on the plaintiff.

Due to lack of merits, no relief was granted and petition was dismissed.[Mangipudi Nagaraju v. State of Andhra Pradesh, 2021 SCC OnLine AP 3148, decided on 8-10-2021]

Case BriefsSupreme Court

Supreme Court: In the dispute relating to distribution of personnel between the Telangana and Andhra Pradesh Power Generation Corporations, the bench of Ashok Bhushan* and MR Shah, JJ has held that the allocation made by the One-man Committee of former Supreme Court judge, Justice D.M. Dharmadhikari is final and that the said allocation cannot be challenged by any employee or officer or any utility before any forum.

After the division of the erstwhile State of Andhra Pradesh into two States, namely, the State of Telangana and the residuary state of Andhra Pradesh by Andhra Pradesh Reorganisation Act, 2014, the power utilities of Telangana unilaterally relieved 1157 employees working with power utilities of Telangana to join in respective power utilities of Andhra Pradesh. The power utilities of Telangana were motivated by principle of nativity, i.e., those employees whose service records mentioned them as resident of any part of the residuary State of Andhra Pradesh were relieved and those who belonged to territory of the newly formed State of Telangana were permitted to join at Telangana by their self-option, against which writ petition was filed before the High Court.

The High Court allowed the writ petitions, set aside the impugned action of power utilities of Telangana relieving 1157 employees and issued further directions. The High Court specifically disapproved the principle of nativity, which was the factor for allocation of the employees by the Telangana State power utilities.

Telangana Power Generation Corporation Limited filed moved the Supreme Court against the judgment of the High Court. Supreme Court upheld the order of the High Court, however, noticing that two States have not been able to arrive at any consensus and to finally determine the modalities for distributing the personnel between two States, it, with the agreement of the parties entrusted the task to One-Man Committee of Justice Dharmadhikari. The Court also permitted the parties to approach the Court by filing an interlocutory application, if any, clarification or further directions were required.

The One-Man Committee after deliberations with all stakeholders noticed that 655 employees have been allocated from Telangana State to Andhra Pradesh and equal numbers from Andhra Pradesh to Telangana including 71 names from Andhra Pradesh to Telangana, which was held to be of special cases like spouse and medical cases.

On the liberty granted to parties to seek clarification or further direction, the Supreme Court said that it was done with object to complete the process of distributing the personnel between two States. There was no right of appeal given to any of the parties or any officer or employee against the report of One-Man Committee.

“The power utilities of both the States having not been able to arrive at any consensus to finally determine the modalities to distribute the personnel between two States, this Court constituted One-Man Committee to decide the dispute. When this Court clearly directed as noted above that decision of OneMan Committee shall be final and binding on all the parties including power utility companies as well as the employees, the decision of the One-Man Committee has to be given due weight and cannot be lightly interfered with.”

[Telangana Power Generation Corporation Ltd. v. Andhra Pradesh Power Generation Corporation Ltd., 2020 SCC OnLine SC 995, decided on 07.12.2020]


*Justice Ashok Bhushan has penned this judgement

For Telangana State power utilities: Senior Counsels Mukul Rohtagi, Rakesh Dwivedi, V. Giri, Ranjit Kumar

For Andhra Pradesh power utilities: Senior Counsel Neeraj Kishan Kaul

For Telangana Electricity Engineers Association: Senior Counsel Dushyant Dave

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Rakesh Kumar and J. Uma Devi, JJ., while ordering CBI investigation in regard to defamatory posts being put up against the Judiciary on social media sites, observed that,

“Petitioner i.e. High Court of Andhra Pradesh is being attacked by some corner with some oblique motive.”

High Court

Petitioner i.e. High Court, whose shoulder is heavily burdened with the responsibility of mainly protecting the right of a citizen guaranteed under Part III of the Constitution of India, is itself before this Court with inward pain due to indirect/direct attack on it by some of the malefactors.

News Trend: Abuse the High Court & Judges

This Court has since April, 2020 noticed that a new trend has developed in the State of Andhra Pradesh which is to abuse the High Court and its Judges on different social media sites along with interviews on electronic media.

No platform for Judges

Judges do not have any platform to prove their sincerity, integrity, etc. even in a case they are otherwise abused or insulted.

Contempt of Courts Act, 1971

Provisions of the Contempt of Courts Act, 1971, in a case of willful disobedience/insult to the Court, one can be dealt with, but the fact remains that penal provisions under the Contempt of Courts Act are though enough to deter persons, who have some faith in the system; but not enough to deter such malefactors in making unwarranted allegations against the Judiciary or Judges.

Waging War –> Judiciary

It has been noted that the person occupying high posts are indulging in waging war against the State of Andhra Pradesh’s Judicial system. The said war against the judicial system will certainly create unnecessary doubt in the citizen’s mind leading to crippling the entire system.

Article 226 of the Constitution of India

In view of the above background, the Andhra Pradesh High Court, Amravati has preferred to invoke the writ jurisdiction under Article 226 with a view to protecting its entity from the attack of some antisocial elements in the State.

Increase in defamatory posts on social media

After filing two complaints by the Registrar General of the High Court of Andhra Pradesh for the offences under Sections 505 (2) and 506 of the Penal Code, 1860, instead of a decline in posting defamatory posts on social media, it started increasing.

In an earlier incident, one of the alleged accused Kondareddydhanireddy, YSRCP had shared a defamatory post against one of the Judges of the Andhra Pradesh High Court.

In the present context, the Judges have been abused in view of some of the orders passed by this Court.

Impact | Orders against State Government and its functionaries

On 22-05-2020, different benches of this Court had passed different orders against the orders and actions of the State Government and its functionaries.

Immediately after the passing of the above-stated orders, social media was flooded with objectionable posts. Even the persons occupying high positions went to the media and gave interviews against the High Court and its Judges, that too, from the party office belonging to a political party, which is in power.

Investigation

Petitioners Counsel tried to persuade the Court that against the Judiciary, which is one of the main pillars of the democracy, such scathing attack is being made with impunity, which requires immediate intervention and thorough investigation; and, as such, it was prayed to entrust the investigation into the aforesaid matter to an independent investigating agency.

He further submitted that since the attack has been made by the persons occupying high positions and associated with the Government, there was no possibility of an independent and fair investigation at the hands of the State Government controlled agency.

Bench in view of the above directed to entrust all the FIRs to the Central Bureau of Investigation.

Court added that,

While conducting an investigation, it would be necessary to examine as to whether such attacks on Judiciary were made as a result of a larger conspiracy or not.

If it is noticed that it was due to the result of larger conspiracy, the CBI is required to take appropriate action against such culprits irrespective of the post and position.

Court while concluding its decision directed that CBI immediately after taking up investigation may take steps so that all the defamatory posts available on social media, i.e., private respondents, may be struck down and may also take steps to block such users in accordance with the law.

CBI shall submit its report in a sealed cover to the Court within 8 weeks.

The matter has been lited for 14-12-2020.[High Court of Andhra Pradesh at Amaravati v. State of Andhra Pradesh, 2020 SCC OnLine AP 1019, decided on 12-10-2020]

Hot Off The PressNews

“Sri Justice Ramana’s proximity with Mr. Chandrababu Naidu is too well-known. I am making this statement with utmost responsibility.”  

Andhra Pradesh Chief Minister Y.S. Jagan Mohan Reddy has written to the Chief Justice of India Justice SA Bobde accusing Justice NV Ramana, the sitting judge of the Supreme Court of India and also the next in line to become the Chief Justice of India, of attempting to destabilize and topple the YSR Congress government in the state.

In the 8-page letter to CJI dated 06.10.2020, Reddy refers to Justice Ramana’s close proximity to N. Chandrababu Naidu, TDP Leader and former Chiel Minister of Andhra Pradesh and the involvement, as recorded in the preliminary findings of the Anti-Corruption Bureau, of his two daughters, some of his close associates and relatives in the illegal purchase of land of about 4000 acres which later came to be notified as the location for the new capital.

“Such transactions of sale and purchase of property could not have been taken place without the knowledge and acquiescence of Justice N.V. Ramana for the simple reason that just a year before such purchase, in his declaration of assets as Chief Justice of Delhi High Court, it is shown that his 2 daughters are dependant members of his family. NO information is available in public domain for the years 2014 and 2015.”

Reddy has also enclosed the copy of opinions highlighting the identity of views and expressions between Chandrababu Naidu and Justice Ramana, about the fitness of candidates considered for elevation as judges of the Andhra Pradesh High Court.

“All the beneficiaries of the illegal transaction needed to protect their interests and cover up their misdeeds.”

Not only this, the letter further accuses Justice Ramana of influencing the sittings of the High Court including the roster of a few judges and instances of how matters important to TDP have been allocated to a few judges.

The letter highlights the order passed by CJ Maheshwari in a writ petition filed by Dammalpati Srinivas, former Advocate General of Andhra Pradesh and alleged close associate of Justice Ramana, the letter states, that stayed the investigation of FIR against Srinivas and imposed a gag order on the press.

It states that the beneficiary of such orders is clearly and exclusively the members of TDP of which Justice Ramana was the legal adviser. This demonstrates the bias in State Judiciary towards TDP and it’s interests.

Jagan Mohar Reddy requested the CJI to look into the matter and

“… consider initiating such steps as may considered fit and proper, to ensure that the State judiciary’s neutrality is maintained.”


Jagan Mohan Reddy’s image courtesy: YSR Congress’s Official Website

Case BriefsSupreme Court

Supreme Court: In the plea challenging the Andhra Pradesh High Court order dated 22.05.2020 which directed the complete seizure of the  LG Polymers Plant in Vishakhapatnam in the case relating to the hazardous gas leak which claimed 12 lives and affected hundreds of others on May 7, 2020, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran, JJ allowed 30 LG Polymers personnel to access to the plant round the clock to maintain adequate safety measures as an interim measure till the matter is considered by the High Court.

“we permit the petitioner to give a list of 30 personnel as discussed hereinabove. Upon such names being given to the District Collector, those persons shall be afforded access to the plant round the clock to maintain adequate safety measures.”

The said direction of the Court came after Senior Advocate Mukul Rihatgi submitted that a complete seizure or sealing of plant/ premises will have tremendous adverse consequences and impact.

“the temperature of the plant cannot be allowed to go beyond 25° C; and if by any chance because of lack of adequate attention or safety measures, if the temperature goes beyond 25° C situation can have some ill effects.”

Here’s what LG Polymers submitted before the Supreme Court:

  • atleast 28 technical personnel and two administrative officials/incharge must be given emergency access to the plant/premises at any given point of time so that adequate safety measures are undertaken round the clock.
  • at the intermediate stages of manufacture, the Polymers that the petitioner manufactures can have toxic effects and therefore adequate safety measures have to be undertaken every time.
  • the premises in question also house the administrative and Law Offices of the Company and in case the entirety of the premises are seized/sealed, the operation of the company will stand seriously prejudiced.
  • the products lying for clearance be allowed to be cleared so that there are no adverse financial effects on the Company.
  • the inspections to be carried pursuant to the directions issued by the High Court must be in the presence of officials of the Company so that adequate assistance as well as complete knowledge about the processes undertaken by the petitioner could also be highlighted sufficiently.

Finding force in the abovementioned submissions and considering the fact that the compliance report was directed to be filed by 26.5.2020 and the matters may be taken up on 27.5.2020 & 28.5.2020, the Court gave liberty to the petitioner to place all these issues and aspects for consideration by the High Court.

Passing interim order in the matter, the Court clarified,

“This ad interim direction will continue till the High Court considers the matter.”

[LG Polymers India Pvt. Ltd. v. State of Andhra Pradesh, SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 11636/2020, order dated 26.05.2020]

Also read:

Vizag Gas Leak Incident| A.P. HC | LG Polymers to be seized and passports of directors shall not be released without leave of Court

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

The Court noticed that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again.  But instead, it issued G.O. Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible.

Agreeing to the apprehensions of the appellants that the State may again by way of mis­adventure, resort to similar illegal exercise as was done earlier, the Court directed the State of Andhra Pradesh to not exceed the limits of reservation in future. It said,

“In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date.”

The Court also held that the notification in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.

It, further, held that the conditions of eligibility in the notification with a cut­off date, i.e., 26.1.1950, to avail the benefits of reservation, were also unreasonable and arbitrary.

The Court also answered, in detail, the questions relating to scope of power of the Governor. Here’s a summary of the other questions referred to and answered by the Court:

Scope of paragraph 5(1), Schedule V to the Constitution of India:

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

  • exercise the powers concerning any particular Act of the Parliament or the legislature of the State.
  • direct that such law shall not apply to the Scheduled Areas or any part thereof
  • apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.

Governor’s power to make a new law

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications.

make a provision within the parameters of amendment/modification of the Act of Parliament or State legislature.

“The power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India.”

Does the power to make new laws extend to subordinate legislation?

No, the power does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with.

Can the exercise of the power conferred Under Para 5(1), Fifth Schedule of the Constitution override fundamental rights guaranteed under Part III?

The power is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution.

Does the exercise of such power override any parallel exercise of power by the President under Article 371D?

No, the Governor cannot override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof.

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383 , decided on 22.04.2020]