Karnataka

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court (Dharwad Bench): Suraj Govindaraj, J. while deciding a matter regarding handcuffing of an accused during arrest, held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others.

Some disputes had arisen between a law student studying in Shikshan Prasrak Mandals Law College at Raibag (‘the petitioner’) and Babu Annappa regarding a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Due to this, five criminal cases were filed against the petitioner for offences under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. Pursuant to this, the petitioner was arrested by the Respondent 3- Police Sub-Inspector, Ankali Police Station after a non-bailable warrant was issued Thereafter, he was allegedly paraded with handcuffs in Ankali Town and later on was taken in a bus in handcuffs from Ankali to Chikodi Police Station, without being produced before the Court.

Later on, the petitioner’s bail application was rejected, and he was remanded to judicial custody. He appealed the order of conviction which was thereby stayed The petitioner alleged that despite the conviction being stayed, he was repeatedly harassed by the police as they would illegally arrest or detain him, visit his house, and threaten him. Thus, the petitioner filed the present writ petition seeking relief in nature of compensation under Articles 226 and 227 of Constitution of India, for the damage caused to his life and reputation due to illegal detention and illegal handcuffing even prior to the petitioner being proven guilty.

Issues framed by the Court:

1. Whether the accused who is arrested can be handcuffed? If so, under what circumstances?

2. If there is any violation by the Arresting Officer, would the accused be eligible for compensation?

3. On what basis is the compensation required to be determined and paid?

4. Whether the accused suffered damage to his life and reputation or not? If yes, then what amount of compensation should be awarded?

Relevant Statutory Provisions regarding Arrest and Handcuffing

A perusal of Section 46 of the Code of Criminal Procedure, 1973 ‘CrPC’ indicates that a person can be arrested by touching or confining the body of the person to be arrested, unless there is a submission to custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.

Section 49 CrPC indicates that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Therefore, it is the requirement of law that the restraint has to be reasonable and only to the extent that the person does not escape from custody.

Section 220 of Penal Code, 1860 ‘IPC’ indicates that if a person who has legal authority to confine a person, confines such a person contrary to law, he shall be punishable with imprisonment, which may extend to seven years or with fine or with both.

Sections 831, 832, 833, 834 and 835 of the Karnataka Police Manual provide for instructions for using handcuffs. A perusal of the said provisions would indicate that the prisoner should not be normally handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing. In the event of an accused is handcuffed, the facts and reasons for it is required to be recorded in the Station House Dairy.

Analysis and Findings:

Reliance was placed on Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 and Antonio Sebastiao Mervyn Degbertde Piedade Pacheco v. State of Goa 2008 (6) AIR Bom R 585 and observed that normally during arrest an accused cannot be handcuffed. Only under extreme or exceptional circumstances, such as violent tendencies or the possibility of escape, can an accused be handcuffed. Furthermore, there are some requirements to be fulfilled by the authorities in such a case:

  • When an accused is handcuffed, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court.

  • Whenever an accused is produced before the Court of law, it would be required of the Court to enquire if the accused had been handcuffed or not and if handcuffed, to ascertain the reasons recorded by the Arresting Officer on the justifiability on the same.

Thus, the court held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others. The nature of offences and the punishment prescribed for the said offence are not relevant for the matter of handcuffing.”

Dealing with the issue regarding compensation, reliance was placed on D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and observed that “if there is a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation”. Thus, in the present case, the State is responsible for compensating the petitioner and the amount of damage is to be calculated on the basis of any evidence and documents produced by the petitioner.

Regarding the third issue, the court held that there are a few considerations that have to be made while awarding the compensation, these considerations are as follows:

  • The court should take into consideration the loss/damage that might have been caused to the person who has been handcuffed.

  • The court should also consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law. Additionally, although the State would be required to pay the compensation, the State would be at liberty to recover the same from the concerned defaulter(s).

Thus, the court observed that “Compensation which is required to be paid as aforesaid being a Public Law Remedy, there cannot be a straitjacket formula which could determine the amount of compensation that has to be paid. Be that as it may. The compensation which is required to be paid is by applying the principles of strict liability.”

Lastly, the court held that the evidence provided by the petitioner does not sufficiently prove that the petitioner was paraded in handcuffs and his reputation has been as immensely damaged as he claims. Thus, for the procedural irregularity of handcuffing, the petitioner was awarded Rs. 2 lakhs as compensation as opposed to Rs 25 lakhs which was originally demanded.

[Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133 decided on 10-06-2022]

Advocates who appeared in this case :

Santosh P. Pujari, Advocate, for the Petitioner;

Praveen K. Uppar, Advocate, for the Respondent.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: K.S. Mudagal, J., allowed the petition and set aside the impugned award awarding compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act.

The facts of the case are such that the respondent was working as a driver in the petitioner’s organization. On 03-03-2004, during the course of his duty, the bus driven by him met with an

accident on Bengaluru – Mangaluru route and he suffered injuries. The medical board issued certificate stating that due to the said injuries, the respondent cannot discharge his duty as driver. Thus, the petitioner assigned the respondent alternate light work. The petitioner treated the respondent’s period of absence from March 2004 to October 2005 as on duty and paid full salary. Admittedly, the respondent claimed compensation under Motor Vehicles Act and was awarded compensation with interest. The respondent got notice issued to the petitioner claiming compensation  with interest under the Employee’s Compensation Act, 1923 (for short ‘Act, 1923’) on the ground that he suffered disability during the course of employment. Then he preferred claim petition before the Labour Court Mangaluru under Section 33C (2) of the Industrial Dispute Act, 1947 (for short ‘the I.D.Act’) claiming compensation along with interest and Silver Medal Allowance. The Labour Court  allowed the claim petition and awarded compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act. Assailing this, the present petition was filed.

Counsel for petitioner Ms. Shwetha Anand submitted that Section 33C (1) and (2) of the ID Act shall be read in an integrated and holistic manner. Section 33C (2) of the Act can be invoked only in relation to an award or the settlement contemplated under Section 33C(1) of the I.D. Act. As the respondent did not perform the duty of driver, after the accident he was not entitled to silver medal allowance.

Counsel for respondent Mr. VS Naik submitted that Section 33C(2) of the I.D. Act is an independent provision and need not be preceded by an award. Irrespective of workmen getting compensation under the Motor Vehicle Act, he is entitled to claim under the Act, 1923.

The Court observed that Section 33C(2) of the I.D. Act refers to any amount due to workman. Section 33C(1) of the I.D. Act speaks of any amount due to workman under the settlement or award under the provision of Chapter 5-A or 5-B of the I.D. Act. The respondent claimed that he was entitled to claim the amount due to the injuries suffered by him during the course of employment. Therefore his claim was under the Act, 1923. In such event the claim lies before the Employee’s Compensation Commissioner and not before the Labour Court.

The Court relied on judgment Municipal Corporation of Delhi v. Ganesh Razak,  (1995) 1 SCC 235  and State of U.P v. Brijpal Singh (2005) 8 SCC 58 wherein it was observed

The Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court’s power under Section 33C(2) like that of the Executing Court’s power to interpret the decree for the purpose of its execution. 

“It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act.”

The Court thus observed that in view of the respondent not performing the work as a driver and assignment of lighter work to him, whether he was entitled to silver medal allowance was a matter of adjudication. Therefore that could have been subject matter of a dispute under the I.D Act. Without such adjudication, in the light of the judgment of Supreme Court, the respondent could not have maintained the petition under Section 33C(2) of the I.D. Act.

The court held “The Labour Court committed error in assuming the jurisdiction under Section 33C(2) of the ID Act. The award is liable to be set aside.”  [Management of KSRTC v. K. Shivaram, WP No. 17583/2017, decided on 04-04-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

The facts of the case are such that a compromise petition was filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings by a person claiming to be the power of attorney holder of the petitioner and as such the petitioner’s interest in the suit schedule property therein was compromised without the knowledge of the petitioner and therefore a fraud was committed on the petitioner by resorting to an abuse of the process of the Court and filing of a compromise petition in the Lok-Adalat. Thus instant petition was filed under Articles 226 and 227 of the Constitution of India praying to quash the compromise decree and restore the original suit before Principal Senior Civil Judge at Huballi on merits.

Counsel for petitioner Mr Mahesh Wodeyar submitted that the petitioner not having executed any power of attorney in favour of respondent 1, the power of attorney claimed by respondent 1 is fabricated one and as such neither the agreement of sale could be executed by respondent 1 in favour of respondent 2 nor could a compromise be entered into by the respondent 1 with respondent 2 for the Lok-Adalat to record. Thus, the petition needs to be allowed and the compromise recorded by the Lok-Adalat be set aside.

Counsel for the respondent Mr Padmanabha Mahale submitted that respondent 1 is the power of attorney holder of the petitioner and respondent 1 has entered into a compromise with the knowledge and consent of the petitioner with respondent 2. The compromise having been filed before the Court and the Court having forwarded the matter to the Lok- Adalat the compromise is one which is filed before the Court and as such the present petition is not maintainable since the trial Court having taken the compromise on record, only a suit challenging the compromise is maintainable.

The Court after perusing all the material facts observed that the plaintiff in a suit cannot array a defendant to be represented by power of attorney showing the address of the said power of attorney without even showing the address of the defendant. It was also observed that the net result of the entire proceedings and procedure followed is that the plaintiff who was not aware of the said proceedings, a compromise decree has been passed against the petitioner who though arrayed as a party to the preceding was never served with the notice nor did the defendant contest the said the proceedings. There is a procedural irregularity inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise.

The Court relied on Akkubai v. Venkatrao, 2014 SCC OnLine Kar 10110  and deprecated the said practice of recording compromise before the Court and thereafter referring to Lok-Adalat, as it is not contemplated in the Legal Services Authorities Act, 1987 and such compromise if recorded before the Lok Adalat is required to be set aside.

The Court also issued general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

(i) When a compromise is filed before the Court in terms of the decision in Akkubai v. Shri Venkatrao, 2014 SCC OnLine Kar 10110  it is for the Court to record the compromise and not refer the matter to the Lok- Adalat.

(ii) It is only if there is no settlement arrived at before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to be referred to the Lok-Adalat and in the event of a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lok- Adalat.

(iii) When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be used by the Lok-Adalat.

(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.

(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.

(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter.

(vii) When recording a compromise being entered into by a power of attorney, the original of the power of attorney is required to be examined by the Court and the Lok-Adalat and necessary endorsement made in the order to that effect and the original power of attorney returned to the parties.

(viii) As far as possible the trial Court and or the Lok- Adalat to secure the presence of the party and obtain signature of such party rather than the power of attorney.

(ix) The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.

The Court allowed the petition and quashed the compromise decree dated 26-07-2014 in O.S. No.246/2014. [Renuka v. Ramanand, Writ Petition No. 103766 of 2018, decided on 31-03-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

The instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to issue writ in the nature of mandamus or any other appropriate writ directing the respondent authorities to shift the location identified for setting up solid waste management unit of Somanahalli Grama Panchayat of Amabigarahalli village of Mandya district.

Counsel for petitioners submitted that the location of the site for solid waste management is not at all proper and correct. It is submitted that it is very much near to the river and as such, there is strong apprehension that the solid waste dump at the proposed site may pollute the river. It is also submitted that nearby there are temples and as such, it may affect the religious sentiments of the people visiting the temples. It may also cause environmental pollution and health hazards for the people living nearby the area to the site. The petitioners who are said to be the residents of the area have raised the grievance but, it has not been considered by the Authorities concerned.

The Court observed that it is for the concerning Authorities to find out the most suitable place for the establishment of the solid waste management unit. The impact of dumping of solid waste is to be kept in mind while deciding the location of the site. It shall not affect the residents of the area and the environment at large.

The Court held “We, therefore, dispose of this writ petition with the observation that the petitioners may raise their grievance by way of fresh representation within a period of ten days from today before respondent no. 4- Deputy Commissioner, DC office, Mandya District, who may look into the matter and if need be , take an expert opinion, and pass appropriate orders in accordance with law expeditiously, say, within a period of six weeks from the date of certified copy of this order along with the representation is placed before him.”[A B Devaraju v. State of Karnataka, WP No. 6386 of 2022, decided on 29-03-2022]

Appearances

For petitioner- Sri Sharath S Gowda

For respondent- G V Shashi Kumar

Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsSupreme Court

Supreme Court: Dealing with the appeals preferred by the States of Karnataka and Kerala against the decisions of the Division Benches of the High Courts of Kerala and Karnataka where in was held that the respective State Legislatures had no legislative competence to impose tax on the lotteries conducted by other States in their State, the bench of MR Shah and BV Nagarathna*, JJ has held that both the High Courts were wrong in holding so as the Legislatures of the State of Karnataka and Kerala were fully competent to enact the impugned Acts and levy taxes on the activity of ‘betting and gambling’ being organised and conducted in the said respective States, including lotteries conducted by the Government of India or the Government of any State.

The matter dealt with the competence of Karnataka and Kerala Legislatures to pass the Karnataka Tax on Lotteries Act, 2004 and Kerala Tax on Paper Lotteries, Act, 2005, respectively.

Here are the key highlights from the judgment:

  • The subject ‘betting and gambling’ in Entry 34 of List II is a State subject.
  • ‘Lotteries’ is a species of gambling activity and hence lotteries is within the ambit of ‘betting and gambling’ as appearing in Entry 34 List II.
  • The expression ‘betting and gambling’ is relatable to an activity which is in the nature of ‘betting and gambling’. Thus, all kinds and types of ‘betting and gambling’ fall within the subject of Entry 34 of List II. The expression ‘betting and gambling’ is thus a genus it includes several types or species of activities such as horse racing, wheeling and other local variations/forms of ‘betting and gambling’ activity. The subject ‘lotteries organised by the Government of India or the Government of a State’ in Entry 40 of List I is a Union subject. It is only lotteries organised by the Government of India or the Government of State in terms of Entry 40 of List I which are excluded from Entry 34 of List II. In other words, if lotteries are 120 conducted by private parties or by instrumentalities or agencies authorized, by Government of India or the Government of State, it would come within the scope and ambit of Entry 34 of List II.
  • Thus, the State legislatures are denuded of their powers under Entry 34 of List II only to the extent of lotteries organised by the Government of India or the Government of a State, in terms of Entry 40 of List I. In other words, except what is excluded in terms of Entry 40 of List I, all other activities which are in the nature of ‘betting and gambling’ would come within the scope and ambit of Entry 34 of List II. Thus, ‘betting and gambling’ is a State subject except to the extent of it being denuded of its powers insofar as Entry 40 of List I is concerned.
  • Entry 62 of List II is a specific taxation Entry on ‘luxuries, including taxes on entertainments, amusements, betting and gambling’. The power to tax is on all activities which are in the nature of ‘betting and gambling,’ including lotteries. Since, there is no dispute that lotteries, irrespective of whether it is conducted or it is organised by the Government of India or the Government of State or is authorized by the State or is conducted by an agency or instrumentality of State Government or a Central Government or any private player, is ‘betting and gambling’, the State Legislatures have the power to tax lotteries under Entry 62 of List II. This is because the taxation contemplated under the said Entry is on ‘betting and gambling’ activities which also includes lotteries, irrespective of the entity conducting the same. Hence, the legislations impugned are valid as the Karnataka and Kerala State Legislatures possessed legislative competence to enact such Acts.
  • Thus, the scope and ambit of lotteries organised by Government of India or Government of State under Entry 40 of List I is only in the realm of regulation of such lotteries. The said Entry does not take within its contours the power to impose taxation on lotteries conducted by the Government of India or the Government of State.
  • Lottery schemes by the Government of other States are organised/conducted in the State of Karnataka or Kerala and there are express provisions under the impugned Acts for registration of the agents or promoters of the Governments of respective States for conducting the lottery schemes in the State of Karnataka and the State of Kerala.

[State of Karnataka v. State of Meghalaya, 2022 SCC OnLine SC 350, decided on 23.03.2022]

*Judgment by: Justice BV Nagarathna

For Karnataka: Additional Solicitor General N. Venkataraman

For Kerala: Senior Advocate Pallav Shishodia

For Respondent States: Senior Advocates C. Aryama Sundaram, S.K. Bagaria, Arvind P. Datar, Amit Kumar (Advocate General for the State of Meghalaya)

Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna J. allowed the petition and quashed the impugned order and remitted the matter back to Sessions Judge for cross-examination.

The instant petition was filed on a complaint being registered for offences punishable under Section 376(n) read with Section 34 of Penal Code, 1860 i.e. IPC, Sections 4, 6, 8, 12 and 17 of the POCSO Act and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act. The State is before the Court in the subject petition challenging the order dated 16-09-2019 passed by the Principal District and Sessions Judge, Chamarajnagar whereby the Sessions Judge declined to permit the State to cross-examine the victim on her turning hostile in a case arising out of the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.

The Court relied on judgment Doula v. State, Criminal Appeal No.100260/2016 decided on 22-07-2020 observed that in terms of sub-section (2) of Section 33 of the POCSO Act, the Special Public Prosecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall in turn put those questions to the child. Therefore, the victim is permitted to be cross-examined under the POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act.

The Court thus observed that from a perusal of the impugned order is that it runs counter to Section 33 of the POCSO Act, judgments rendered by various courts and resultantly becomes unsustainable. Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POCSO Act which mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim. The Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance.

The Court held “Criminal Petition is allowed and the order dated 16.09.2019 passed by the Principal District and Sessions Judge, Chamarajnagar in Special Case No.184 of 2019, stands quashed.”

[State v. Somanna, 2022 SCC OnLine Kar 370, decided on 03-03-2022]

For petitioners: Mr. Shankar HS

Arunima Bose, Editorial Assistant has reported this brief.

Hot Off The PressNews

A Full Bench of the Karnataka High Court will pronounce the Hijab Verdict today.

Crux of the matter was, the insistence of certain educational institutions that no girl students shall wear the hijab (headscarf) whilst in the classrooms.

Let’s see what the Bench expressed through the interim order on 10-2-2022

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

To read the background of the matter, read the report on interim decision, here: Full report…

The whole controversy in the matter erupted when the students from Government Girls PU college in the Udupi district of Karnataka started protesting in against the school administration for allegedly barring them from attending classes.

Other decisions revolving around the same issue from Courts around the world:

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Whether prohibition of ‘purdah’ is an infringement of constitutional right? What the Supreme Court of Kuala Lumpur (Federal Court of Malaysia) decided

Did you know that 3 minor Muslim boys were expelled from school for not following dress code and for wearing “Serban” (turban) in Malaysia?

Did You Know? What Bombay High Court held when a Muslim girl raised the issue that asking her not to wear a “headscarf” in school violates her fundamental right under Article 25 of the Constitution of India?

District CourtForeign CourtsHigh Court Round UpHigh CourtsLegal RoundUp

Let’s have a look at the most interesting legal stories reported this week on the SCC Online Blog from High Courts, Foreign Court to District Court.

“Islam is not about turban and beard.”

— Federal Court of Putrajaya

Hijab Case | When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order || A Recap

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

Read more, here.

To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

In Nadha Raheem v. C.B.S.E,  2015 SCC OnLine Ker 21660, Kerala High Court’s Single Judge Bench in the year 2015 dealt with petitions by two female students belonging to the Muslim community contending that the dress code prescribed by the Central Board of Secondary Education (C.B.S.E) of wearing half sleeve kurta/salvar would prejudice them, as their religious custom mandates them to wear a headscarf and also full sleeve dresses.

Read more, here.

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

In this case, a work rule was introduced, as per which all the employees had to wear a hard hat at a particular work site, but Bhinder a Sikh employee refused to comply with the said rule because his religion did not allow the wearing of headgear other than the turban.

Read more, here.

Did You Know? What Bombay High Court held when a Muslim girl raised the issue that asking her not to wear a “headscarf” in school violates her fundamental right under Article 25 of the Constitution of India?

“A girl student not wearing the head scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.”

Read more, here.

Did you know that 3 minor Muslim boys were expelled from school for not following dress code and for wearing “Serban” (turban) in Malaysia?

“…in a country with many religions being practised, to allow a regulation or law to be declared unconstitutional just because someone claims that it prohibits his “religious practice” no matter how trivial it is and even though in a very limited way, would lead to chaos.”

Read more, here.

Whether prohibition of ‘purdah’ is an infringement of constitutional right? What the Supreme Court of Kuala Lumpur (Federal Court of Malaysia) decided

“…there seem to be a myth or misconception by certain groups of Muslim in Malaysia regarding the wearing of purdah which covers the entire face except the eyes. They believe that it is one of the Islamic injunctions which must be followed strictly.”

Read more, here.

Uphaar Case | Manner in which judicial records tampered revealed well-planned & methodical attempt to subvert justice system: Suspending sentence of Ansal brothers would amount eroding faith of public? Read Del HC’s decision

Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar Case, Subramonium Prasad, J., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

Read more, here.

If Court finds that marriage failed due to incompatibility, but one of the parties withholds consent for mutual separation, would that be ‘Cruelty’? Kerala HC elaborates

Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

Read more, here.

Teacher administering moderate and reasonable force to enforce discipline in classroom, can be exposed to criminal prosecution? Kerala HC answers

While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

Read more, here.

If a person keeps tobacco at residence, would that amount to being an offence? Ker HC answers

While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

Read more, here.

Expression of a victim’s trauma or experience is his/her fundamental right which can only be curtailed if it falls under 4 broad categories: Read on to know categories | Alleged sexual harassment case of a ScoopWhoop employee

Patiala House Court, while addressing the alleged case of sexual harassment against the CEO of ScoopWhoop, wherein it sought an interim injunction, Court expressed that,

Expression of a victim’s trauma or experience is his / her fundamental right which can only be curtained it is falls under four broad categories i.e. “libel, slander, defamation”, “contempt of court”, “offends against decency or morality” and “undermines the security or tends to overthrow the State”. 

Read more, here.

Legislation UpdatesNotifications

The Karnataka Legislative Assembly has passed the Karnataka Police (Amendment) Bill, 2021 to amend Karnataka Police Act, 1963, banning all forms of gambling in the state, including online gambling.

 

Key features of the Bill are:

  • The bill seeks to make gambling a cognisable and non-bailable offence and “include the use of cyberspace including computer resources or any communication device as defined in the Information Technology Act, 2000 in the process of gaming to curb the menace of gaming through the internet, mobile apps”.
  • The bill stipulates that “games mean and includes online games, involving all forms of wagering or betting, including in the form of tokens valued in terms of the money paid before or after the issue of it, or electronic means and virtual currency, electronic transfer of funds in connection with any game of chance.”
  • The bill provides for a fine of Rs 10,000 and imprisonment of six months for first time offenders. For a second offence, violators would receive a jail term of one year and a fine of Rs 15,000.

 

*Tanvi Singh, Editorial Assistant has reported this brief.

Appointments & TransfersNews

Four Additional Judges elevated as Judges in Karnataka High Court

President appoints S/Shri Justices (1) Singapuram Raghavachar Krishna Kumar (2) Ashok Subhashchandra Kinagi (3) Suraj Govindaraj and (4) Sachin Shankar Magadum, Additional Judges of the Karnataka High Court, to be Judges of the Karnataka High Court.

Read more about the Judges:

Shri Justice Singapuram Raghavachar Krishna Kumar, B.A.L., LL.B, was enrolled as an Advocate on 29.08.1992. Since then he has practiced in Karnataka High Court and Subordinate Courts at Bangalore in civil, constitutional, matrimonial, company, consumer disputes and arbitration matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09,2021.

Shri Justice Ashok Subhash Chandra Kinagi, B.Sc., LL.B., was enrolled as Advocate on 02.06.1995. He practiced in Karnataka High Court in civil, labour, service and constitutional matters. He was appointed as Central Government Standing Counsel during 2008 2012. He also worked as part time Lecturer in a Law College from July 1997 to March 2006. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Govindaraj Suraj, B.A., LL.B., was enrolled as Advocate on 23.06.1995. He practiced in civil, constitutional, company and arbitration matters in Karnataka High Court, various High Courts, Tribunals and Supreme Court and before various Tribunals. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Sachin Shankar Magadum, B.Sc., LL.B., has practiced in Karnataka High Court at Bangalore and at Dharwad Bench in civil, criminal, constitutional, service and matrimonial matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Link to the Notification: Order of Appointment

Ministry of Law and Justice

[Notification dt. 22-02-2021]

Op EdsOP. ED.

Background and Introduction

The Karnataka Government promulgated the Karnataka Land Reforms (Amendment) Ordinance, 2020 [hereinafter ‘the Ordinance’] in July 2020[1] whereby Sections 79-A, 79-B and 79-C of the Karnataka Land Reforms Act, 1961[2] were omitted thereby permitting non-agriculturists to purchase agricultural land without any limitations under law. Considering that agricultural land was significantly cheaper than land within a metropolitan city, purchasing land outside the city becomes more economically viable in comparison to purchasing property within the city. The lifting of these restrictions could result in a spurt of residential dwellings outside the city in the form of high-rise apartments, villas, etc., Bangalore is witness to a trend where people living in the city are choosing to relocate to the city’s outskirts and surrounding rural areas. This rapid counter-urbanisation is attributable to various factors such as high urban population density, overcrowding, rise in pollution and establishment of prominent schools outside the city. This article seeks to address a legal vacuum that exists regarding utilisation of agricultural land for the purposes of residence in the form of farm houses. However, construction of any sort on land that has been converted from an agricultural land use to non-agricultural land use is not within the ambit of this write-up.

Present Legal Position

Development of layouts, high-rises and other residential buildings is regulated by Local Planning Authorities constituted under the Karnataka Town and Country Planning Act, 1961[3]. The Local Planning Authorities promulgate various comprehensive development plans and regulations under the Act. The zoning regulations are fairly comprehensive in classification of land use, building regulations and other construction codes. Further, Section 76-M contains an overriding clause that is reproduced as under:

76-M. Effect of other Laws—(1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.

(2) Notwithstanding anything contained in any such other law,-

 (a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;

(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.

The effect of the above section was therefore that no other legislation could prevail over the provisions, rules, bye-laws and regulations formulated under the Karnataka Town and Country Planning Act, 1961. Therefore, the Comprehensive Development Plans promulgated by the Local Planning Authorities would prevail over any other enactments promulgated by the Legislature.

Additionally, the modalities and procedure regarding grant of sanctioned plans, building licence permits are also governed by the local municipal bodies under the Karnataka Municipal Corporations Act, 1977[4], the Karnataka Municipalities Act, 1964[5] in urban areas and the Karnataka Panchayat Raj Act, 1993[6] in areas falling under Gram Panchayats. These local bodies are free to promulgate their own bye-laws and rules regarding the procedure for grant of sanctioned plans/license permits. However, the local bodies cannot promulgate any rules or regulations that run afoul of the zoning regulations and comprehensive development plan issued by the Local Planning Authorities. This position was clarified by the Karnataka High Court in Yashodha Rao v. Bruhat Bangalore Mahanagara Palike[7] viz.

 “11. At the outset, to determine which of the Regulations is applicable it is to be noticed that the Bye-laws, 2003 relied on by the learned counsel for the petitioner would indicate that the same was framed on 24-4-2004, keeping in view the earlier Zoning Regulations which was published with the approval of the State Government on 5-1-1995 under the provisions of the KTCP Act. The said Bye-law came into force in supersession of the Bye-laws, 1983. These aspects would indicate that the Bye-law to be framed by the Mahanagara Palike is dependent on the Master Plan which would be prepared by the BDA which is the Planning Authority in the instant case. On approval of the Revised Master Plan, the Bye-laws would have to be framed in conformity with the Revised Master Plan. Presently, though the Revised Master Plan, 2015 and the Zoning Regulations, 2007 has come into force with the approval of the State Government on 25-6-2007, the Mahanagara Palike has not yet framed the Bye-laws in conformity with the same. Though that is the position, the Mahanagara Palike cannot continue to approve the construction plan under the Bye-laws, 2003 itself insofar as the specifications as it would be contrary to the Master Plan and Regulations prepared by the Planning Authority which has the jurisdiction to plan and specify regarding the development and constructions in the area. That has to be regulated and implemented by the Local Authority i.e. the BBMP in the instant case.”

The Karnataka High Court also upheld the supremacy of the Zoning Regulations under the Karnataka Town and Country Planning, 1961 against any other provisions in Dhammangi Developers Pvt. Ltd.  v.  Additional Director (Town Planning), Bruhat Bangalore Mahanagara Palike[8], the Court held as under:

 “13. As rightly contended by the counsel for the petitioner, as per Section 76-M of the Karnataka Town and Country Planning Act, 1961, the provisions of the Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. The Revised Master Plan, 2015, and the Zoning of Land use and Regulations are the result of the power exercised by the State Government under the provisions of the Karnataka Town and Country Planning Act, 1961. Therefore, Section 76-M gives precedence to these regulations. Even if there are other regulations framed by the State Government or even if there are building bye-laws of the BBMP defining high rise building as height of 15 m  and above requiring clearance of Director of Fire Services, without impinging on the rules and regulations framed in exercise of the powers conferred under the Karnataka Town and Country Planning Act, 1961, the same can be enforced. It is also necessary to notice here that as per Section 505 of the Karnataka Municipal Corporations Act, 1976, the Corporation or its authorities are precluded from doing anything against the provisions contained in the Karnataka Town and Country Planning Act, 1961, and the Regulations framed therein. In the light of the above, the inescapable conclusion is, that while the petitioner is required to abide by all the fire safety measures that can be incorporated in the building constructed by him and the portion to be constructed by seeking necessary permission by the BBMP, he cannot be asked to follow such measures which may render impossible any additional construction by the petitioner. This is because at the time he obtained permission, there was no such rigor and the permission was granted after following the rules and regulations applicable at that time.”

 As on the date of this article, many local authorities have not promulgated any bye-laws governing the grant of building licence and continue to utilise the provisions of the Zoning Regulations issued by the Local Planning Authorities. Although the zoning regulations are comprehensive regarding residential, industrial, commercial and public buildings, the regulations promulgated by the Local Planning Authorities do not adequately address constructions under the classification of ‘farm houses’.

In 2015, Local Planning Authorities in Karnataka promulgated similar zoning regulations for their respective zones. Most of these regulations only stipulate that a farm house shall be limited to 200 sq m  or 250 sq m in size depending on the total extent of land holding. The only other condition common to the zoning regulations is that the farm house shall be utilised by the farmer for his dwelling and shall not be utilised for any commercial purpose. It would be fair to assume that any person erecting a farm house would do so in a significantly large parcel of land and the stringent requirements governing buildings within city limits would be unnecessary and therefore, the zoning regulations are reasonably silent on additional rules regarding erection of farm houses.

Change in the legal position viz. legislative amendments

However, when the legal position stood as detailed above, the Karnataka Government promulgated the Karnataka Land Revenue (Amendment) Act, 2015[9] which amended Section 95-A of the Karnataka Land Revenue Act, 1961[10] which governed uses of agricultural land and inserted the following explanation;:

“… Provided that the farm building or farm house so erected shall not be more than ten percent of his holding subject to maximum of such extend of land as maybe prescribed.

Explanation. – For the purpose of this sub-section “Farm Buildings” or “farm house” means a house attached to a farm and constructed in a portion of an agricultural land, used for the residence of the agriculturist or used for the purpose of keeping agricultural equipments and tethering cattle. The house shall be used by farmer for his own use and it shall not be let out for commercial activities to any individual or agency.”

The above amendment came into effect from 13th August, 2015 and in essence superseded the limitations of 200/250 sq m that was stipulated in the Zoning Regulations. The amendment would indicate that an ‘agriculturist/farmer’ can erect a farm building or structure that can be up to ten per cent of the size of the land held by him. This could theoretically mean that a farmer who owns ten acres of land could erect a building that is 43,000 sq  ft  without falling foul of the zoning regulations.

Thereafter, the Urban Development Department of Karnataka Government also promulgated a draft ‘Common Zonal Regulations, 2017’ that sought to replace all other zoning regulations formulated by the Local Planning Authorities. The draft common zoning regulations reduced the permissible construction area of a farm house to 100/150 sq m.[11] However, the said draft regulations were stayed by an order of the Karnataka High Court and the matter is presently pending before the High Court of Karnataka.[12]

Analysis of judicial pronouncements vis-à-vis the change in law

The Karnataka High Court considered the effect of the 2015 amendment to the Karnataka Land Revenue Act, 1961 in G.S. Siddaraju v. State of Karnataka[13] and held as under:

“11. It is thus clear that an agriculturist can erect building in his agricultural land for its more convenient use or better cultivation, provided such farm building or farm house so erected is not more than 10% of his holding subject to maximum of such extent of land as may be prescribed. No rule prescribing any maximum extent of land on which such building can be erected is brought to the notice of the Court. Therefore, the proviso which says that the farm building or farm house so erected shall not be more than 10% of his holding has to be kept in mind while examining whether the house constructed is in the nature of a farm house or it loses its characteristic feature of a farm house. In other words, if the farmer has got 10 acres of land, he cannot be found fault with for putting up construction utilising a bigger area in his agricultural land, say up to 1 acre provided he uses such construction for his own residence for the purpose of agricultural operations, tethering of cattle or for storing agricultural implements or products including for residence of himself and his family members, his servants and dependents.

*                                          *                                             *

  1. Merely because the construction put up is a bigger one, it cannot be held that the construction loses the characteristic of a farm building unless it falls within the mischief of proviso to sub-section (1) of Section 95 of the Act which states that such farm building or farm house erected shall not be more than 10% of his holding or that it does not satisfy the explanation appended to sub-section (1) of Section 95 of the Act which states that farm building or a farm house means a house attached to a farm and construction made in a portion of agricultural land, used for the residence of the agriculturist or used for the purpose of keeping agricultural equipments and tethering cattle or that the house shall be used by farmer for his own use and shall not be let out for commercial activities to any individual or agency.”

An analysis of this judgment demonstrates that the Court has applied the provisions of the Karnataka Land Revenue Act, 1961 enabling construction of farm houses to the extent of ten per cent of the land holding, even though the said provisions were in conflict with the zoning regulations that limited the size of construction of farm houses to only 200/250 sq m. In G.S. Siddaraju[14], the Karnataka High Court did not dwell into a discussion or analysis of the overruling clause that can be found in Section 76-M of the Karnataka Town and Country Planning Act, 1961. These judicial pronouncements therefore lead to a question as to whether Section 76-M of the Karnataka Town and Country Planning Act, 1961 operated only till the time when such provision was inserted or whether the provision continues to accord superiority to any and all further enactments promulgated by the Legislature after the dated on which Section 76-M was inserted into the Karnataka Town and Country Planning Act, 1961. The scope of operation of Section 76-M was considered by the Karnataka High Court in 1976 in  H.G. Kulkarni v.  Assistant Commissioner, Belgaum[15] wherein the Court observed:

“17. We now turn to the only remaining contention of the petitioner, which has been outlined earlier. This contention turns on the over-riding effect given to the provisions of the Mysore (now Karnataka) Town and Country Planning Act, 1961 by Section 76-M therein, the relevant portion whereof reads:

“Effect of other Laws—(1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent herewith contained in any other law.

(2) *                           *                               *”

                                                                                            (emphasis supplied)

A similar provision is also to be found in the Act with which we are here concerned. It is Section 47 which reads:

“Effect of provisions inconsistent with other laws.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.”

                                                                                     (emphasis supplied)

  1. The question is which of the above two provisions should prevail. The relevant principle governing the effect to be given to two such conflicting provisions has been stated in Craics on Statute Law, Sixth Edn. at p. 349, thus:

“….And it appears to be a constitutional necessity as well as an established rule of construction that the last utterances of the legislature should prevail over earlier statutes inconsistent with it;….”

  1. Viewed in the light of the above principle, it would be clear that the provisions of Section 47 of the Act must be given overriding effect vis- à-vis the provisions of the Karnataka Town and Country Planning Act, as the former Act being of the year 1966, was later than the other Act which was of the year 1961. But it was faintly suggested that when the legislature enacted Section 76-M of the Town and Country Planning Act, it had intended that it should have effect over all future legislation also. This contention is without substance as a legislature cannot impose fetters on itself in regard to the exercise of its legislative power in future, and even if it does, it would not be binding on it. Hence all the contentions fail.”

Therefore, the law regarding interpretation of statutes is clear to the extent that the last iteration of the legislature should prevail over earlier statutes that are inconsistent with it.

However, this position and the judgment in H.G. Kulkarni[16] was not directly considered by the Karnataka High Court whilst pronouncing the judgment in Dhammangi Developers Pvt.  Ltd.[17] since no direct conflict with Section 76-M of the Karnataka Town and Country Planning Act emerged. In Dhammangi Developers[18], the Court observed that on the basis of the facts in that case, since the regulations under the Fire Force Act, 1964 were made applicable only after the sanctioned plan was granted to the petitioner, Section 76-M would prevail over any further regulation. It could therefore be construed that Section 76-M would prevail over any inconsistencies to the zoning regulations. However, principles of statutory interpretation indicate that a later enactment must take precedence over any previous enactments in the event of any direct conflict. It is therefore a logical conclusion that a farm house can be constructed without any regulations subject to the total area being within ten per cent of the total land holdings.

Conclusions and ground realities

The evolution of the law in this regard reveals an unresolved conflict between the provisions of the Town and Country Planning Act, 1961 and the Karnataka Land Revenue Act, 1961. The zoning regulations framed thereunder do not adequately regulate any constructions on farm lands. Since the limitation on non-agriculturists purchasing farmlands has been lifted through the Karnataka Land Reforms (Amendment) Ordinance, 2020, the instances of farm lands being utilised to erect large structures will increase, resulting in disproportionate growth outside the city. The legal vacuum thus created will also have a detrimental effect of fertile agricultural lands being utilised to erect large residential structures. The Gram Panchayats governing the rural areas on the outskirts of the city do not have any formal mechanism where a building permit is granted for construction of a farm house. The Gram Panchayats generally issue a NOC on the basis of a simple sketch provided for construction of farm house. History reveals that when land use is unregulated, the citizens seek to construct buildings on every inch of usable space without having any regard to the use of land, environmental factor and other ramifications of large constructions. The situation requires immediate legislative correction in the form of specific regulations to address constructions on unconverted agricultural land and any such regulation must endeavour the misuse of agricultural lands in a nation that is primarily agricultural.

*Advocate, GDroit, Advocates, Bangalore. Author can be reached at gautamaditya@gdroit.com

[1] The Karnataka Land Reforms (Amendment) Ordinance, 2020; (Karnataka Ordinance No. 13 of 2020)

[2] The Karnataka Land Reforms Act, 1961 (Karnataka Act No. 10 of 1962)

[3] The Karnataka Town and Country Planning Act, 1961 (Karnataka Act No. 11 of 1963)

[4] The Karnataka Municipal Corporations Act, 1977( Karnataka Act No. 14 of 1977)

[5] The Karnataka Municipalities Act, 1964 (Karnataka Act No. 22 of 1964)

[6] The Karnataka Panchayat Raj Act, 1993 (Karnataka Act No. 14 of 1993)

[7]Yashodha Rao v. Bruhat Bangalore Mahanagara Palike, 2012 SCC OnLine Kar 8891

[8]Dhammangi Developers Pvt. Ltd. v. Additional Director (Town Planning), Bruhat Bangalore Mahanagara Palike; 2012 SCC OnLine Kar 9081

[9] The Karnataka Land Revenue (Amendment Act), 2015( Karnataka Act No. 31 of 2015)

[10] The Karnataka Land Revenue Act, 1964 (Karnataka Act No. 12 of 1964)

[11] Regulation 3.1.8(a)(G) of the Common Zonal Regulations for all Local Planning Areas, 2017 available at http://www.dtcp.gov.in/sites/dtcp.gov.in/files/pdfs/czr_draft_gazettee_notification.pdf

[12] Citizens Action Forum v. The State of Karnataka, WP No. 38165 of 2017, order dated 7-9-2020

[13]G.S. Siddaraju v. State of Karnataka; 2016 SCC OnLine Kar 8430

[14]Ibid

[15]H.G. Kulkarni v.  Assistant Commissioner, Belgaum, 1976 SCC OnLine Kar 15

[16]Ibid

[17]Id. at Note 8

[18] Id.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and H. T. Narendra Prasad JJ., allowed the appeal and quashed the impugned order due to point of law favouring the assessee and not the revenue.

The facts of the case are such that the assessee is a software engineer who was employed with Aerospace Systems Pvt. Ltd., a company registered in India between the period from 1995-1998 and was deputed to SiRF Technology Inc., U.S. in the year 1995 by Aerospace Systems Pvt. Ltd., India as an independent consultant and worked in that capacity 1995-1998 and later as an employee of SiRF USA from 2001-2004. While on deputation to SiRF USA, the assessee was granted stock option by SiRF USA whereunder the assessee was given right to purchase 30,000 shares of SiRF USA at an exercise price of US $0.08 per share and he also had an option of cashless exercise of stock options. The assessee in assessment year 2006- 07 exercised his right under stock option plan by way of cashless exercise and received net consideration of US $ 283,606 and offered the gain as a long term capital gain as the stock options were held nearly for ten years. The assessee also claimed deduction under Section 54 F of the Act. The Assessing Officer vide order dated 26-12-2018 and as per Section 143 (3) of the Income Tax Act, 1961 i.e IT Act artificially split the transaction into two and brought to tax the difference between the market value of shares on the date of exercise and the exercise price as ‘income from salary’ and the difference between the sale price of shares and market value of shares on the date of exercise of ‘income from short term capital gains’. The claim for deduction under Section 54 F of IT Act was disallowed.  The Commissioner of Income Tax (Appeals) was approached who dismissed the appeal on merits which further went in appeal before Income Tax Appellate Tribunal which was thereby dismissed. Aggrieved by the said orders, instant appeal was filed before present High Court.

Counsel for the appellants submitted that the finding recorded by the tribunal that assesee was an employee of SiRF USA is perverse and therefore, the finding of the tribunal that consideration received on transfer of stock options is in the nature of income from salaries cannot be sustained in the eye of law. It was further submitted that stock option was granted to asssessee when he was an independent consultant with SiRF USA and therefore, cannot be treated to be an employee for the purposes of Sections 15 to 17 of the IT Act.

Counsel for the respondents submitted that as per clause 2(f) of the stock plan even a consultant who performs services for the company or a subsidiary shall be treated as an employee. Therefore, the assessee shall be treated as an employee of SiRF USA and amount received as income from salary.

The Court relied on judgment Dhun Dadabhoy Kapadia v. CIT, (1967) 63 ITR 651 (SC) and on perusing clause 2 (f) and 11 of the stock plan as well as the communication dated 03-08-2006 sent by the SiRF USA to the assessee, the Court observed that the assessee was an independent consultant to SiRF USA and was not an employee of SiRF USA at the relevant time.

The Court thus held that, there was no relationship of employer and employee between the SiRF USA and the assessee and therefore, the finding recorded between the SiRF USA and the assessee and therefore, the finding recorded by the tribunal that the income from the exercise of stock option has to be treated as income from salaries is perverse as it is trite law that unless the relationship of employer and employee exists, the income cannot be treated as salary.

In view of the above, impugned order was quashed and appeal was allowed.[Chittharanjan A. Dasannacharya v.  Commissioner of Income Tax, I.T.A. No. 153 of 2014, decided on 23-10-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J., while allowing the present Writ Petition, directed the Medical Council to issue the No Objection Certificate to the Petitioner pending departmental enquiry.

 Brief Facts

  1. That the petitioner, after completing MBBS graduation registered with respondent 5; Karnataka Medical Council and was thereby selected to the post of General Duty Medical Officer by the Karnataka Public Services Commission.
  2. That the petitioner was consequently appointed to the post of General Duty Doctor at Primary Health Centre, Alur Village, Chamarajanagar Taluk and District by way of notification dated 16-12-2015.
  3. That the petitioner thereafter appeared for the entrance examination for pursuing Post Graduation Diploma in Otolaryngology conducted by the Karnataka Examination Authority and secured admission with the Mysore Medical College for the same.
  4. That due permission was taken by the petitioner from respondent 4 with respect to the said enrolment, via communication letter dated, 26-05-2016 and before completing the admission process, charge of his position was handed over to the rightful authority.
  5. That after completion of the course, the petitioner moved a request dated 27-10-2018, for appointment at any government hospital or Primary health Centre to which, an order dated 15-12-2018 was passed recruiting the petitioner at Munduru, K.R. Nagar.
  6. That the petitioner made a representation to the Medical Council, dated 07-09-2019, so to practice as a private doctor, requesting for a NO OBJECTION CERTIFICATE (NOC).
  7. That the aforementioned representation was made contending that the petitioner has discharged his duties in rural area for more than one year as stipulated under the Medical Registration Rules.
  8. That the petitioner also made a parallel application to the Registrar of the Karnataka Medical Council for the registration of Additional Qualification as a Postgraduate diploma holder.
  9. That it is imperative to secure a NOC for the petitioner in order to apply against the recent vacancy for ENT as advertised by the Special Recruitment Committee and Chief Administrative officer, Health & Family Welfare.
  10. That the present petition is filed seeking a writ of mandamus against the respondent authorities to consider the representations made and include the PG Diploma of the Petitioner under the register of the R-5 Council.

 Issue

  • Whether the petitioner has fulfilled the statutory requirement for the issuance of No Objection Certificate by the Medical Council?

 Observation & Decision

While allowing the present Writ Petition, the Court observed,

“(…) As per the Karnataka Compulsory Service Training by Candidate (Counseling, Allotment and Certification) Rules, 2015, a person who has completed MBBS Degree or Post Graduate Degree and Diploma is required to undergo one year compulsory service training in Government Hospital or Medical College Institutions in rural areas. It is also a fact that on completion of the PG Diploma Course, when the petitioner reported back to duty, the authorities have issued a movement order asking the petitioner to take charge as a Duty Doctor, at PHC, Munduru, K.R. Nagar, which is also a rural area. The movement order was issued on 19-12-2018 and till date the petitioner has been serving at the said place. Therefore, the petitioner has completed more than one year in the rural area. The discrepancy pointed out by the respondent is required to be dealt with in the disciplinary proceedings initiated by the respondent authority.”

[Dr Anand Kumar v. State of Karnataka, 2020 SCC OnLine Kar 1632, decided on 09-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, Sanjiv Khanna, and Krishna Murari, JJ has upheld the speaker’s orders dated 25.07.2019 and 28.07.2019 to the extent of the disqualification of the Petitioners but has set aside the part of order that said that disqualified members can’t contest elections till the end of the current Assembly term i.e. the 15th Legislative Assembly of Karnataka. It, hence, directed that 17 Karnataka MLAs can contest the by-elections in the state.

On validity of Speaker’s order

In the impugned order, the Speaker had concluded that the Petitioners have voluntarily given up membership of the party, through their undisputed conduct. Here are the grounds on which the said order was challenged and the Court’s decision on the same:

Breach of principles of natural justice

The Petitioners had contended that the principles of natural justice were breached when the Speaker provided for a three­days’ notice, in derogation of Rule 7(3)(b) of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, wherein a seven­day period is prescribed. The Court, however, held that

“Principles of natural justice cannot be reduced into a straitjacket formula. The yardstick of judging the compliance of natural justice, depends on the facts and circumstances of each case.”

Violation of constitutional mandate

The Court held that though there was an error on the part of the Speaker relating to the period of disqualification imposed in the impugned orders, the same does not rise to a level which requires us to quash the disqualification orders in their entirety.

“the error is severable, and does not go to the root of the disqualification, and thus does not require us to quash the disqualification orders in toto.”

Orders passed with malafides

The Court noticed that the Petitioners have not been able to establish any illegality in the orders passed by the Speaker. It held,

“The Speaker, in our view, had concluded based on material and evidence that the members have voluntarily given up their membership of the party, thereby accruing disqualification in terms of the Tenth Schedule, which facts cannot be reviewed and evaluated by this Court in these writ petitions.”

On Speaker disqualifying members till the end of the term

The Court noticed that the Speaker is not empowered to disqualify any member till the end of the term. However, a member disqualified under the Tenth Schedule shall be subjected to sanctions provided under Articles 75(1B), 164(1B) and 361B of Constitution, which provides for a bar from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re­elected to the legislature, whichever is earlier.

It also explained that the 91st  Constitutional Amendment, Articles 71(1B), 164(1B) and 361B  were enacted to ensure that a member disqualified by the Speaker on account of defection is not appointed as a Minister or holds any remunerative political post from the date of disqualification or till the date on which his term of office would expire or he/she is re­elected   to the legislature, whichever is earlier.

Considering that the Speaker had, in the order, disqualified the members from contesting elections till the end of the current Assembly term, the Court held:

“the part of Speaker’s orders detailing the duration of disqualification, viz., from the date of the respective order till the expiry of the term of  the 15th Legislative Assembly of Karnataka, is accordingly set aside.”

On Petitioner’s approaching Supreme Court directly

The Court, however, wasn’t pleased with the way the matter was dealt with & said,

“we do not appreciate the manner in which the petitioners came to the Court”

It said that the matters challenging disqualification must go to the High Court first. It said that the Speaker, while adjudicating a disqualification petition, acts as a  quasi­judicial  authority and the validity of the orders thus passed can be questioned before this Court under Article 32 of the Constitution. However, ordinarily, the party challenging the disqualification is required to first approach the High Court as the same would be appropriate, effective and expeditious.

On growing trend of Speakers acting against constitutional mandate

It also emphasised on the need for stable governments and that there is a growing trend of Speakers acting against constitutional mandate due to which the citizens are denied stable governments. It said,

“There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty or lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.”

On disqualification vis-à-vis resignation

Though the Court noticed that resignation and disqualification on account of defection under the Tenth Schedule, both result in vacancy of the seat held by the member in the legislature. It, however, said that further consequences envisaged are different. It explained,

“Factum and taint of disqualification does not vaporise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter.”

On reference to larger bench

Holding that no substantial question of law exists in the present matter, which needs reference to a larger bench, the Court said that the power of the Speaker to   disqualify has been interpreted in a number of cases, and the present case does not require any broad­based reference which would only prolong the inevitable.

“Such casual and cavalier references should not be undertaken by this Court in view of conditions prescribed under Article   145(3)   of   the   Constitution,   which   mandates   a responsibility   upon   this   Court   not   to   indulge   in   excessive academic endeavors and preserve precious judicial time, and effectively dispense justice in a timely fashion.”

[Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly, 2019 SCC OnLine SC 1454, decided on 13.11.2019]

Case BriefsSupreme Court

Supreme Court: Deciding the Cauvery Water Dispute that reportedly travels beyond 100 years, the bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ awarded to the State of Karnataka an additional 14.75 TMC of water, i.e., 10 TMC, on account of availability of ground water in Tamil Nadu + 4.75 TMC, for drinking and domestic purposes including such need for the whole city of Bengaluru. Hence, in view of the allocation of additional 14.75 TMC of water to Karnataka, the State of Karnataka would now be required to release 177.25 TMC of water at the inter-state border with Tamil Nadu. The Cauvery Water Dispute Tribunal had, by award dated 05.02.2007, directed the State of Karnataka to release 205 TMC of water to the State of Tamil Nadu.

The Court noticed that the Tribunal had drastically reduced the share of Karnataka towards Domestic and Industrial purpose for the reason being that only 1/3rd of the city of Bangaluru falls within the river basin and also on the presumption that 50% of the drinking water requirement would be met from ground water supply. Holding that the said view taken by the Tribunal ignores the basic principle pertaining to drinking water and is, thus unsustainable, the Court said:

“Drinking water requirement of the overall population of all the States has to be placed on a higher pedestal as we treat it as a hierarchically fundamental principle of equitable distribution.”

In a 465-page detailed judgment, the Bench took note of the fact that around 20 TMC of groundwater is available beneath the surface in Tamil Nadu which the Tribunal has not taken into account citing it as a conjecture. Hence, while keeping in mind the risks associated with over extraction of underground water, the Court said that 10 TMC of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in the final determination of its share.

The Court, however, refused to interfere with the allocation of water in favour of the State of Kerala and the Union Territory of Puducherry.

Stressing upon the importance of the matter, the Court said:

“in view of the acute scarcity of the water resources and the intensely contested claims of the States, it is expected that the allocations hereby made would be utilized for the purposes earmarked and accepted and no deviancy is shown in carrying out the verdict of this Court.”

[State of Karnataka v. State of Tamil Nadu, 2018 SCC OnLine SC 135, decided on 16.02.2018]

Case BriefsSupreme Court

Supreme Court: The Court directed the State of Karnataka to release 6000 cusecs of water from tomorrow i.e. 28.09.2016 till the next date of hearing i.e. 30.09.2016 and said that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till the next date of hearing. Needless to say, the water that has been released will be adjusted in the eventual adjudication.

Fali S. Nariman, appearing on behalf of the State of Karnataka had submitted that there will be difficulty on the part of the State of Karnataka because of the resolution passed by the State to use the Cauvery water for drinking purpose only and not to release the water to the State of Tamil Nadu. The bench of Dipak Misra and U.U. Lalit, JJ, however, said that the direction for release of water has been passed for the coming three days despite the resolution passed.

The Court had asked Mukul Rohatgi, the Attorney General for India what could be the possible solution for the situation and said that the same is being done not because this Court cannot adjudicate or pass appropriate orders in accordance with law to maintain and sustain the rule of law and majesty of law which are elan vital of our constitutional law, but prior to that it would be appropriate if there is a  discussion regard being had to the conceptual federalism prevalent in our democratic body polity. Mukul Rohatgi submitted that the Union of India is prepared to facilitate so that the impasse between the two States can appositely melt. Both the States expressed their consent to it. [State of Karnataka v. State of Tamil Nadu, I.A. NO.12/2016 IN I.A. NO.10 in Civil Appeal No.2456/2007, decided on 27.09.2016]

Case BriefsSupreme Court

Supreme Court: As an interim measure, regard being had to the subsequent developments and the problems that have been highlighted by Fali S. Nariman in the State of Karnataka, the Court directed the State of Karnataka to release 6000 cusecs of water from today till the next date of hearing i.e. 27.09.2016. The Court had initially, on 05.09.2016 directed the release of 15000 cusecs of water and had later modified the said order on 12.09.2016 and directed the release of 12, 000 cusecs of water by the State of Karnataka.

The bench of Dipak Misra and U.U. Lalit, JJ noticed that the Cauvery Water Dispute Tribunal had fixed 192 TMC for normal year in favour of the State of Tamil Nadu and the Tribunal has also carved out monthly allocation from the month of June to May, which is called the “water year”. However, it was contended by the Counsel appearing for the State of Karnataka that is not a normal year and, therefore, there has to be adjustment in monthly allocation and If there is a deficit year and not a normal year, the yearly allocation has to reduce proportionally. He further contended that when the State of Karnataka is in a great misery as far as the supply of water is concerned, it is not possible to release any water in favour of the State of Tamil Nadu and that the State of Karnataka has to part with drinking water if it is compelled to supply the water to the State of Tamil Nadu.

Shekhar Naphade, the counsel for the State of Karnataka contended that the monthly allocation by the Tribunal is rational, inasmuch as it has taken into consideration various crops that are grown in the State of Tamil Nadu and seasonal requirement. He also submitted that both the States have to embrace the principle of adjustment in deficit year. He, however, said that the Tribunal has not really referred to the decision pertaining to drinking water for 2/3rd of the City of Bengaluru are covered by the water basin.

Considering the aforesaid contentions, the Court directed the Union of India to constitute the Cauvery Management Board within four weeks hence, regard being had to the directions by the Tribunal. The Union of India shall produce after four weeks the notification indicating that the Cauvery Management Board has been constituted so that, if required, appropriate directions can be issued to the Board. [State of Karnataka v. State of Tamil Nadu, 2016 SCC OnLine SC 962, decided on 20.09.2016]