Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In total 4 writ petitions were filed against Air India Ltd./AIL (‘respondent’) by the AIL employees (‘petitioners’), being employed from late 1980s and retired between 2016 and 2018 alleging stagnation in pay and non-promotion of the petitioners along with anomalies in the fixation of pay due to the implementation of the report of the Justice Dharmadhikari Committee, which was constituted by the UoI (through its Ministry of Civil Aviation) to harmonize the differential service conditions of AIL and Indian Airlines Ltd., which came to be merged, a Division Bench of Dipankar Datta CJ., and M S Karnik J., held that the writ petitions although maintainable on the dates they were instituted, have ceased to be maintainable by reason of privatization of AIL which takes it beyond the jurisdiction to issue a writ or order or direction to it.

The Court remarked that when the Air Corporations Act, 1953 was operative, Air India was a statutory body. Thereafter, with the repeal of the said Act by the Air Corporations (Transfer of Undertakings) Act, 1994, Air India ceased to exist but upon its incorporation, AIL became a wholly owned Government company and, thus, an ‘other authority’ within the meaning of Article 12. That position subsisted when these writ petitions were instituted and continued thereafter till privatization of AIL. There is, thus, no doubt that this Court was competent to receive the writ petitions when the same were presented but not maintainable at present.

The question for consideration was regarding maintainability of the writ petitions owing to the intervening event of privatization of AIL, the principal respondent, between institution of the writ petitions and its final hearing before the Court.

The Court noted that the change in the status of the ‘authority’ against whom the writ was initially claimed to play a significant role in determining the issue of maintainability.

In Beg Raj Singh v. State of UP, (2003) 1 SCC 726, the Court laid down in para 7 that

A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e., the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law.

In Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni, (2003) 7 SCC 219, the Court laid down that the courts are entitled to mould, vary or reshape the relief to make it justly relevant in the updated circumstances, provided

(i) circumstances in which modified remedy is claimed are exceptional;

(ii) such modification, if the statute on which the legal question is based, inhibits by its scheme or otherwise, such change; and

(iii) the party claiming the relief must have the same right from which either the first or the modified remedy may flow. We do not see any reason to hold that conditions (ii) and (iii) are satisfied in view of the very scheme of a writ remedy.

The Court held that Article 226 would not arm the Courts to issue a writ to any authority or person not comprehended within its meaning and thus, they are precluded from issuing any writ to AIL in the changed circumstances.

[R S Madireddy v. Union of India, 2022 SCC OnLine Bom 2657, decided on 20-09-2022]


Advocates who appeared in this case:

Mr. Sanjay Singhvi, Senior Advocate a/w Ms. Rohini Thyagarajan, Pankaj Sutar and Ms. Shanvi Punamiya i/b. M/s. Jayakar and Partners, Advocates, for the Petitioners/applicants;

Mr. Dashrath A. Dube, Advocates, for the Union of India;

Mr. Darius Khambhata, Senior Advocate, Mr. Kevic Setalvad, Senior Advocate a/w Mr. Aditya Mehta, Sneha Prabhu, Mr. S.D. Shetty, Mr. Rakesh Singh, Mr. Ravi Kini, Shristi Shetty and Jehan Lalkaka i/by. M. V. Kini & Co., Advocates, for the respondent 3 and 4;

Mr. Muralidhar Khadilkar a/w. Mr. Aakash Joshi for proposed respondent 5 in IA(L)/25662/2022.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, (‘A&C Act') challenging an order passed wherein the arbitrator rejected an application filed by the petitioner for amendment of the statement of claim, Prateek Jalan, J. dismissed the petition as non-maintainable and held that Section 23(3) of the Arbitration & Conciliation Act, 1996 vests discretion in the Arbitrator to reject an amendment application made at a belated stage and such an order cannot be challenged under Section 34 of Arbitration and Conciliation Act, 1996.

The Court remarked that “Factors which cloth the orders of the Arbitral Tribunal with the characteristic of finality, render them susceptible to challenge as interim awards under Section 34 of Arbitration & Conciliation Act, 1996

The Court essentially ruled that characteristics of an interlocutory order passed by an Arbitral Tribunal, having trappings of finality are the key to determine maintainability of petitions under Section 34 of Arbitration and Conciliation Act, 1996.

A suit was originally filed by the petitioner against three defendants, of whom the respondent was the principal defendant, and the other two defendants were arrayed as proforma defendants. By an order dated 07.11.2016, the suit, along with five other suits pending before the Court, were referred to arbitration before a former Judge of this Court.

In the arbitral proceedings between the parties, six proceedings have been taken up together by the arbitrator. The Petitioner in one of the six cases had claimed a decree of declaration for the Sale Deed dated 28.07.2010 registered on 29.07.2010 obtained by the Respondent from the Petitioner to be declared as void and cancelled. Vide amendment application dated 21.07.2017, the Petitioner sought amendment of the statement of claim. The Petitioner pressed for amendment by way of additional prayers for a decree directing the Respondent to transfer title of the property under dispute to the Petitioner.

The Respondent resisted the amendment, and the application for amendment was subsequently dismissed vide impugned order dated 04.11.2019 by the arbitrator under Section 23(3) of the A&C Act. The Arbitrator rejected the application as the same was filed belatedly in 2017 and further not pressed upon till 04.11.2019. The arbitrator, however, was sure to record in the impugned order that “expression of any view herein will not be treated as expression on the merit of the case.”

The Counsel for the respondent raised a preliminary objection with respect to the maintainability of the petition under Section 34 of Arbitration and Conciliation Act, 1996, directed against an order of the arbitrator, rejecting an application of amendment. The Respondent submitted that an interim interlocutory order does not have the trappings of an interim award as prescribed under Section 2(1)(c) of Arbitration and Conciliation Act, 1996, and thus, cannot be entertained by the Court.

Placing reliance on Container Corporation of India Ltd. v. Texmaco Limited, 2009 SCC OnLine Del 1594, the Court observed that in the facts of the present case, the arbitrator has proceeded only on the ground that the amendment was sought belatedly and did not adjudicate on the merits of the case. Therefore, the impugned order dated 04.11.2019 under challenge was not an interim award.

Thus, the Court held that the impugned order in the present case does not constitute an interim award, susceptible to challenge under Section 34 of the Act.

[Punita Bhardwaj v. Rashmi Juneja, 2022 SCC OnLine Del 2691, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. A.K. Singla, Senior Advocate, Mr. Rahul Shukla and Mr. Akshit Sachdeva, Advocates, Counsel for the Petitioner;

Mr. Siddharth Batra, AOR, Ms. Shivani Chawla, Mr. Siddharth Satija and Mr. Akash Sachan, Advocates, Counsel for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Prerequisite
OP. ED.SCC Journal Section Archives

INTRODUCTION

In January 2020, the State of Kerala instituted a suit in the Supreme Court under Article 1311, challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015.2 According to the State of Kerala, these are class legislations which harp on the religious identity and country of origin of an individual; the State of Kerala has prayed that all these legislations be declared null and void, as they violate the principle of secularism, a basic feature of our Constitution, as also Articles 14, 21 and 25. The State of Chhattisgarh has challenged the National Investigation Agency Act, 2008 before the Supreme Court under Article 131, alleging that it usurps the power of investigation vested with the police under Schedule VII List II Entry 2 to the Constitution of India, thus violating the federal structure.3

Recently, the Kerala High Court dismissed4 a writ petition challenging the executive decision of the Union of India and Airports Authority of India to hand over Trivandrum Airport to private entities by holding that the appropriate remedy is to institute a suit under Article 131. In appeal, the Supreme Court remanded5 the matter to the High Court by a non-speaking order, leaving the issue on applicability of Article 131 open.

In all these suits, the first question would be of their maintainability under Article 131. It is debatable whether the grounds on which these suits have been instituted give rise to a question “on which the existence or extent of a legal right depends” (a requirement under Article 131), and what is the nature of the precise legal right in question.

Unfortunately, the contrary stands taken by the Supreme Court in State of M.P. v. Union of India6 and State of Jharkhand v. State of Bihar7 do not leave this issue free from doubt. In State of M.P.6, the Supreme Court observed: (SCC p. 276, para 20)

20. … when the Central laws can be challenged in the State High Courts as well and also before this Court under Article 32, normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of this Court provided under Article 131.

In contrast, the Supreme Court in State of Jharkhand7 expressed its inability to agree with these observations in State of M.P.6, and referred the matter to a larger Bench.

In this backdrop, this article seeks to explore the contours of Article 131 of the Constitution of India, to determine the appropriate forum for adjudication of such disputes. To do so, the different capacities in which a State may invoke the jurisdiction under Article 131 shall be first discussed briefly, and thereafter, the scope and extent of Article 131 shall be traversed.

CAPACITIES IN WHICH A STATE MAY INSTITUTE A SUIT

A State institutes a suit in the following capacities:

1. For or on Behalf of its Inhabitants — as “Parens Patriae” or in representative suits

2. For Vindicating its own Rights

For or on Behalf of its Inhabitants

Parens patriae

A welfare State acts as parens patriae of its inhabitants and has long been considered as a proper party to represent and defend its citizens’ rights, when their health, comfort, prosperity or property are endangered.8 In a suit under Article 131 against the Union, can a State act as parens patriae of its inhabitants?

A similar question was examined by the United States Supreme Court in Massachusetts v. Mellon9. The Commonwealth of Massachusetts challenged the constitutionality of the “Maternity Act” enacted by the US Congress, alleging inter alia, invasion of the rights of its citizens. The United States Supreme Court observed as under: (SCC OnLine US SC para 17)

17. … It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens … it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.

The Indian context differs from the United States’ — ours is a quasi-federal structure and single citizenship10; in this backdrop, these observations apply with even greater force to India. Individual States cannot rely on the doctrine of parens patriae to institute suits against the Union of India under Article 131, though they may well have this right when it is another State that they have a grievance against.

Representative suits

Citizens can challenge a Parliamentary legislation or executive action by filing individual petitions before the High Court. To prevent multiplicity of litigation, a State may take up their cause and institute a suit before the Supreme Court. In this circumstance, when the State consolidates their claims in a single representative suit, it does not contend that a legal right of the State is at risk, but is only representing the grievances of its inhabitants. In such a scenario, is recourse to the Supreme Court’s original jurisdiction permissible?

The nature of the parties that can invoke the Supreme Court’s jurisdiction under Article 131 would preclude a State from instituting such suits. In State of Bihar v. Union of India11, the State of Bihar prayed for a money decree citing short delivery of materials under a construction contract. The Court was required to determine if the suit was maintainable under Article 131 when not only the Union, but companies it owned were also arrayed as the defendants. The Supreme Court observed that apart from the framers of the Constitution not having contemplated a dispute involving a private party as amenable to the original exclusive jurisdiction of the Supreme Court, the express words of Article 131 clauses (a), (b) and (c) also exclude the idea of a private citizen, a firm or a corporation figuring as a disputant, either alone, along with, or in the alternative with a State or the Union of India.

Untwalia, J. in his opinion in State of Karnataka v. Union of India12, outlines the adverse consequences in allowing such suits to be instituted under Article 131: (SCC p. 715, para 216)

216. … If a restricted meaning were not to be given to the scope of the suit which can be filed under Article 131, very anomalous, and sometimes absurd, results may follow and it will be difficult to put a dividing line and a stop to the very wide scope of the suit resulting from such an interpretation. … The argument that the State is interested in protecting its people and officers when their legal right has been illegally invaded by the Central Government and, therefore, it has a locus to invoke Article 131, in our opinion, is too obviously wrong to be accepted.

American jurisprudence similarly holds that a State may invoke the US Supreme Court’s original jurisdiction only where the offending statute affects the property or the powers of the complaining State in its sovereign or corporate capacity,13 but not for the benefit of individuals.14

It follows that for a legal right in dispute to be amenable to the exercise of jurisdiction under Article 131, the legal right has to be of the State, and not of private individual(s).

For Vindicating its own Rights

A State can institute a suit on its own accord, on grounds similar to those adopted by the State of Kerala and the State of Chhattisgarh while instituting their suits. When considering this independent challenge, two remedies are available to a State — it can either institute a suit under Article 131 or approach the High Court under Article 226 of the Constitution of India. The right recourse would depend on the sphere in which Article 131 operates.

ARTICLE 131: SCOPE AND EXTENT

Article 131: Its historical antecedents

The Joint Committee on Indian Constitutional Reform in its 1933-1934 Session first contemplated about the Federal Court (Supreme Court’s predecessor) and its original jurisdiction. The Committee envisaged this jurisdiction to be an exclusive one, since in its opinion it would be altogether inappropriate if proceedings could be taken by one Unit of the Federation against another in the Courts of either of them. It further opined that the jurisdiction ought to include not only the interpretation of the Constitution Act, but also the interpretation of Federal laws enacted by the Federal Legislature.15 The Sapru Committee concurred with the view of the Joint Committee.16

Consequently, Section 204 of the Government of India Act, 1935,17 enabled the Federal Court to determine disputes between the constituent units of the Federation and also specified the nature of the disputes that the Court could be called upon to examine and decide.

As noticed in State of Rajasthan v. Union of India,18 the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kinds specified between the Federation and the Provinces should be adjudicated upon only by the highest Court of the land, which would be beyond the influence of any one constituent unit. The original jurisdiction of the Federal Court was not to provide a special forum to the constituents of the Federation to resolve ordinary disputes capable of being decided by other courts, but was meant for the adjudication of a special category of disputes arising between them. The jurisdiction conferred was not on account of the parties alone, but due to the unique combination of the parties and the subject-matter involved.

This historical background of Article 131 was noticed by the Supreme Court in State of Bihar11. Article 131 had its precursor in Section 204 of the Government of India Act, 1935, and is a remnant of federalism found in the Government of India Act, 1935.12 As noted by Chandrachud, J.,19 Article 131 proceedings are an expedited dispute resolution process not subject to an appeal as the two sovereigns should not be in protracted litigation with each other.

Nature of disputes under Article 131

Limitations while exercising jurisdiction under Article 131

Article 131 seems to have borrowed from Section 204 of the Government of India Act, 1935, two limitations on the exercise of jurisdiction:

1. Limitation as to parties mentioned in clauses (a), (b) and (c) of Article 131.

2. Limitation as to the subject-matter.20

The first limitation is fairly clear through the decision in State of Bihar,11 and has been discussed previously in this article.

With regard to the limitation as to the subject-matter, Article 131 does not specifically limit the kind of right that can be the subject-matter of dispute. In fact, the Federal Court in United Provinces v. Governor General in Council,21 interpreted the similarly phrased Section 204 of the Government of India Act, 1935 to encapsulate all disputes involving the existence of any legal right recognised by law and capable of being enforced. In this judgment, the Federal Court interpreted “legal right” broadly, and without regard to the history of Section 204. The Court relied on authorities that considered the meaning of “legal right” from the perspective of private parties in a dispute,22 without regard to the specific context in which the term is used. The interpretation did not take into account the special nature of parties i.e. the Union and the State(s), which invoke the jurisdiction of the Court. As would follow from the immediately following discussion in the article, such an interpretation of the term “legal right” does not accord with the role that Article 131 plays in the Indian Constitution.

Role of Article 131 and connotation of “Legal Rights”

Under the Constitution of India, Article 131 plays a seminal role in ensuring that the Union and the States act within the spheres of their authority and do not trespass upon each other’s constitutional functions or powers.12 As elaborated earlier, Article 131 was not meant for the adjudication of ordinary disputes, but for a special category of disputes having a bearing on the legal rights of the constituent units of the Federation.

While dealing with Article 131 and disputes over which it has jurisdiction, the Supreme Court specifically noted in State of Bihar11: (SCC p. 73, para 10)

10. Although Article 131 does not define the scope of the disputes which this Court may be called upon to determine in the same way as Section 204 of the Government of India Act, and we do not find it necessary to do so this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up.

Applying the same principle, the Madras High Court23 repelled the argument against maintainability of the State of Tamil Nadu’s challenge to the constitutional validity of Sections 60(4), (5), (6) & (7) of the Prevention of Terrorism (Amendment) Act, 2003 in a petition under Article 226. The ground of challenge was that the impugned provisions violated the separation of powers between the executive and judicial branch of the Government. The High Court rejected the suggestion that a suit under Article 131 was the more appropriate remedy by observing: (State of T.N. case23, SCC OnLine Mad para 12)

12. (b) … it is not each and every kind of dispute between the above disputants that the Supreme Court tries exclusively on its original side. The resolution of dispute is confined to only such questions whether on law or on fact on which the existence or extent of a legal right depends. Materially, the said disputes touch upon either Centre-State relations or inter-State relations.

(emphasis supplied)

The consistent position of the Supreme Court is that the right agitated in a suit instituted under Article 131 should have some bearing on the constitutional relationship that exists between the parties to the dispute, that is the State and the Union. This articulation is central to the interpretation of the phrase “legal right” occurring in Article 131.

In State of Karnataka,12 the State challenged the decision of the Union of India to set up a Commission to inquire into allegations of corruption against the Chief Minister of Karnataka. Bhagwati, J.’s concurring opinion explained the meaning of the term “legal right” in the context of Article 131 as under: (SCC p. 710, para 205)

205. It would also be convenient at this stage to consider what is the meaning of the expression “legal right” as used in Article 131. It is obvious that the word “right” is used here in a generic sense and not according to its strict meaning. “Right” in its narrow sense constitutes the correlative of duty, but in its generic sense it includes not only right stricto sensu, but “any advantage or benefit conferred upon a person by a rule of law”. … What has, therefore, to be seen in order to determine the applicability of Article 131 is whether there is any relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute. If there is, the suit would be maintainable, but not otherwise.

(emphasis supplied)

In Union of India v. State of Rajasthan,24 the Supreme Court decided whether a suit for recovery of compensation filed by the State of Rajasthan for the loss caused by Railways is maintainable in an ordinary civil court, or could be filed under Article 131. Delving into the nature of legal rights under Article 131, the Court observed: (SCC p. 244, para 12)

12. … we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities, etc. flowing therefrom. Any dispute which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government, a consumer of railway services, etc. like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution. It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court.

(emphasis supplied)

Adopting this principle, the Andhra Pradesh High Court in R. Krishnaiah v. Union of India,25 observed that the State cannot invoke this jurisdiction except when the dispute arises between the Governments in their sovereign capacity.

This makes it clear that the scope of “legal right” under Article 131 is restricted to the rights arising out of the relationship between the State and the Centre i.e. rights having a direct bearing on the federal structure of Indian polity, and does not encompass any and all legal rights that are enforceable in a court of law. In this background, the suit instituted by the State of Chhattisgarh challenging the National Investigative Agency Act, 2008 for the reason that the Union cannot unilaterally usurp the power of investigating a crime which otherwise falls in the domain of the “police” under Schedule VII List II Entry 2 of the Constitution, would be one that the Supreme Court would have to examine on merits. This suit involves the interplay of legislative and executive powers of the Union vis-à-vis the States, and touches upon the constitutional relationship between them.

In its suit challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015, the State of Kerala has attempted to hold the Union of India accountable to the principle of secularism, the tests of Articles 14, 21 and 25 and its obligations under certain International Conventions and Laws. As mentioned in the plaint, the State of Kerala does not wish to enforce these legislations as part of its obligations under Article 256 of the Constitution.26 But applying Bhagwati, J.’s tests in State of Karnataka12, can one say that the validity of these legislations involves “a right, liberty, power or immunity” qua the State of Kerala? Or would the broader understanding in Union of India v. State of Rajasthan24 apply, where the legal right is to be examined “in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc. flowing therefrom.”27

One can argue that ensuring that the basic structure of our Constitution is implemented in letter and spirit is the responsibility of both the Union and the States, and the States have no less of an obligation to defend the Constitution, and its core values.28 However, this argument is prefaced on the responsibility/role of the States to defend the Constitution. Once this role/responsibility is accepted, can one say that the validity of the legislations itself is a “relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute”. Similarly, even though one can argue that the responsibility of the State to defend the Constitution is its duty, it will be stretching it to say that the ability/responsibility of the State, as constituent of a Federation, to keep the Union alive to its duty of upholding the basic structure and constitutional provisions flows from its constitutional relationship with the Union. One can also argue that the obligation (or lack thereof) of a State to enforce an allegedly invalid legislation under Article 256 is a question on which the extent of the right or immunity of a State depends.29 However, giving such a broad interpretation to the scope of Article 131 would mean that anytime a State disagrees with or differs from a course of action proposed/undertaken by the Union (whether in the legislative sphere or the executive30), recourse under Article 131 would be permissible. This would expose Article 131 to precisely the same dangers as were expressed by Untwalia, J. in State of Karnataka12, and make it very difficult to put a dividing line to prevent recourse to Article 131 by the States at will.

However, recently, the Kerala High Court in Mahesh G.4 observed that the question of existence of the right of the State of Kerala and of the Kerala State Industrial Development Corporation to challenge decisions of the Union of India and Airports Authority of India is itself a question on which the existence or extent of legal right depends. The High Court dismissed4 the writ petition by holding that a suit under Article 131 ought to be instituted for challenging the policy decision taken by the Union of India to invite private bodies in the airport management sector. This judgment fails to consider the true meaning of “legal rights” as enunciated by the Supreme Court in State of Karnataka12 and Union of India v. State of Rajasthan24.

Suits under Article 131 stand in contrast with petitions for vindication of Part III Rights

Besides the distinction relating to the parties and their inter se relationships between ordinary suits and a suit under Article 131, the subject-matter and method of adjudication under Article 131 is also different from proceedings under other courts of law. As pointed out in State of Bihar11: (SCC p. 70, para 2)

2. … The other distinguishing feature is that the Court is not required to adjudicate upon the disputes in exactly the same way as ordinary courts of law are normally called upon to do for upholding the rights of the parties and enforcement of its orders and decisions.

The very nature of the disputes arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits12. In disputes between the Centre and the State in their sovereign capacity, the question is who the power rests with. In such a proceeding, the assertion of its rights/powers by the plaintiff inheres in itself the absence of the right/power of the defendant. This is so because the executive or legislative right/power has to be with either the Union or the State. This was noticed in State of Karnataka12, when it was observed that whereas in a civil suit, the right claimed by the plaintiff may reside neither in him nor in the defendant but in a stranger, in a proceeding under Article 131, one of the parties (plaintiff or the defendant) would possess the constitutional power to act.31 However, given the context in which the opinion was delivered, this can only apply where the dispute is between the State and the Union, and not when the dispute is between two States.

Additionally, in proceedings for vindication of fundamental rights or other legal rights, the right in question must be that of the plaintiff; for the suit or petition to be maintainable, the petitioner(s)/plaintiff(s) must demonstrate that their right exists and how the respondent-defendant threatens to or invades that right. In suits instituted under Article 131, the legal right in question need not be of the plaintiff. As observed in State of Karnataka,1232: (State of Karnataka case12, SCC p. 709, para 204)

204. It may also be noted that, on a proper construction of Article 131, it is not necessary that the plaintiff should have some legal right of its own to enforce, before it can institute a suit under that article. … What Article 131 requires is that the dispute must be one which involves a question “on which the existence or extent of legal right depends”. The article does not say that the legal right must be of the plaintiff. It may be of the plaintiff or of the defendant. … We cannot construe Article 131 as confined to cases where the dispute relates to the existence or extent of the legal right of the plaintiff, for to do so, would be to read words in the article which are not there.

(emphasis in original)

In this light, it would be untenable to conclude that proceedings can be instituted under Article 131 for the vindication of Part III rights. Moreover, as is evident, States of Kerala and Rajasthan, while challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015 for violating Part III rights and the basic structure of the Constitution, do not, and cannot, assert that it is not the Union but they who have the competence to enact those legislations (which may or may not violate the basic structure or constitutional provisions). For this reason as well, these suits would not get to attract scrutiny under Article 131.

Alternate construction of Article 131 in relation to rights to which Article 226 extends

Article 226 provides a speedy and effective legal remedy to individuals for protecting their rights. The scope of Article 226 also extends to legal rights that are not fundamental rights. The rights enforceable through Article 226 are of an individual nature.33

While resolving a river water dispute (which are typically of an inter-State nature) in State of Karnataka v. State of A.P.34, the Supreme Court examined the relative scope of Articles 131 and 262 of the Constitution of India. The Court held that where Parliament has enacted a law for the resolution of water disputes, the jurisdiction under Article 131 would be ousted by Article 262 as the two overlap and the former is “subject to the provisions of the Constitution”. This would be the position notwithstanding the fact that the dispute is between the Centre and the State(s) or between two States.

The same principle would apply if one extends the jurisdiction under Article 131 to the entire spectrum of legal rights. As Article 131 and Article 226 would then operate in overlapping spheres, Article 131 would also be subject to Article 226. This would make Article 131 nugatory and take away the jurisdiction of the Supreme Court, when Article 131 explicitly confers upon the Supreme Court exclusive jurisdiction over certain disputes involving the constituents of our Federation. Moreover, it cannot be argued that the jurisdiction exists only by virtue of parties, as the subject-matter and nature of proceedings under Article 131 are unique.

CONCLUDING THOUGHTS

It clearly emerges that the jurisdiction of the Supreme Court under Article 131 extends only to those disputes that satisfy the limitation as to parties and the limitation as to the subject-matter of the dispute. A State may institute a suit under Article 131 challenging legislative or executive actions of the Union only if the subject-matter of the dispute relates to the federal structure of the Constitution i.e. the distribution of legislative or executive power or rights involving its relationship qua the Union or another State; the dispute remains outside the scope of Article 131 when grounds relate to violation of fundamental rights, contractual rights, etc.

Suits instituted under Article 131 by the State of Kerala and the State of Rajasthan challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, cannot be said to involve a question on which the existence of a legal right of the State depends and would not be maintainable. It is indeed the duty and responsibility of all to uphold constitutional values and follow constitutional provisions, and even of individuals to ensure that the Union and the States do not violate them through their legislative or executive actions. However, the historical antecedents of Article 131 make it clear that its role is not to ensure adherence with every constitutional provision/value by the Union, but to ensure that the sovereign units of the Federation do not tamper with the delicate structure of the Indian polity and their inter se relationship. These suits do not fall in this category, and the questions raised therein would be more appropriately examined in a petition under Article 226.

It is also clear that the reasoning of the Kerala High Court in Mahesh G.4 failed to consider the true import of the term “legal right” and also the ratio of State of Bihar11, which forbids any entity other than the State from being a party to a suit under Article 131.35 However, one can say that the suit instituted by the State of Chhattisgarh challenging the National Investigation Agency Act, 2008, as being ultra vires Schedule VII List II Entry 2 would have to be examined on merits under Article 131.


Advocate, Allahabad High Court.

†† LLB (Ist Year), Campus Law Centre, Faculty of Law, University of Delhi. The authors express their gratitude to Shri S.P. Gupta, Senior Advocate and Prof. U.R. Rai for their guidance on the article, and Mr. Chintan Nirala, Advocate for his valuable suggestions. The errors are of the authors only.

*The article has been published with kind permission of SCC Online cited as (2021) 5 SCC J-9

1 131. Original jurisdiction of the Supreme Court.—Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

(a) between the Government of India and one or more States;

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States,

if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

2 OS No. 2 of 2020 — State of Kerala v. Union of India, registered on 24-1-2020. The State of Rajasthan has also preferred a similar challenge, with its suit being registered as OS No. 3 of 2020 — State of Rajasthan v. Union of India on 26-5-2020.

3 OS No. 1 of 2020 — State of Chhattisgarh v. Union of India, registered on 24-1-2020.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

5 K.P. Suresh v. Union of India, 2020 SCC OnLine SC 1210

8 Missouri v. Illinois, 1901 SCC OnLine US SC 25 : 45 L.Ed. 497 : 180 US 208 (1901); People of State of New York v. State of New Jersey, 1921 SCC OnLine US SC 117 : 65 L.Ed. 937 : 256 US 296 (1921).

10 States have exclusive powers only over legislative fields enumerated in Schedule VII List II and the Union is vested with overriding powers in most spheres, unlike the United States where the position is largely the reverse. People in the United States are citizens of the country (United States) as well as the State they reside in, while people in India are citizens only of India, and not of the individual States.

14 Massachusetts v. Missouri, 1939 SCC OnLine US SC 121 : 84 L.Ed. 3 : 308 US 1 (1939).

15 Joint Committee Report on Indian Constitutional Reform Vol. I, Part I, Paras 322 and 324.

16 Para 247. The report was titled “Constitutional Proposals of the Sapru Committee”.

17 204. Original jurisdiction of Federal Court.—(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other court, have an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or any of the Federated States, if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to—

(a) a dispute to which a State is a party, unless the dispute—

(i) concerns the interpretation of this Act or of an Order in Council made thereunder, or the extent of the legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State; or

(ii) arises under an agreement made under Part VI of this Act in relation to the administration in that State of a law of the Federal Legislature, or otherwise concerns some matter with respect to which the Federal Legislature has power to make laws for that State; or

(iii) arises under an agreement made after the establishment of the Federation, with the approval of His Majesty’s Representative for the exercise of the functions of the Crown in its relations with Indian States, between that State and the Federation or a Province, being an agreement which expressly provides that the said jurisdiction shall extend to such a dispute;

(b) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend to such a dispute.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

19 Id, p. 692, para 167.

20 “if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

22 Dr T.E. Holland, Jurisprudence (Edn. 13) p. 82; John Austin, Lectures on Jurisprudence Volume 1, Lect. 16, p. 398 (1929); Sir John Salmond, Jurisprudence (Edn. 7, 1925) pp. 239-40).

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

23 State of T.N. v. Union of India, 2004 SCC OnLine Mad 65.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

26 256. Obligation of States and the Union.—The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

24 Union of India v. State of Rajasthan, (1984) 4 SCC 238.

27 Id, p. 244, para 12.

28 Guest Post: Article 131 and the Power of State Governments to Challenge Laws, accessible at:<https://indconlawphil.wordpress.com/2020/02/20/guest-post-article-131-and-the-power-of-state-governments-to-challenge-laws/> (last accessed 8-6-2020).

29 Since refusal to enforce such legislation may lead to potentially severe consequences, such as the Union invoking Article 356.

30 Under Article 257, States are obliged not to impede the exercise of executive power by the Union.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608, 691, para 163.

24 Union of India v. State of Rajasthan, (1984) 4 SCC 238.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

31 State of Karnataka v. Union of India, (1977) 4 SCC 608, pp. 691-692, para 165.

32 One cannot interpret this to mean that the legal right can be that of citizens or a third party. Such an interpretation would not be in accordance with the nature of the parties that can be respondent-plaintiffs in proceedings under Article 131.

33 Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., AIR 1962 SC 1044. Exceptions would be cases taken up in public interest or for writs of habeas corpus or quo warranto.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

35 Kerala State Industrial Development Corporation cannot be a party to a suit under Article 131. The extended definition of “State” under Article 12 does not extend to Article 131. See State of Bihar v. Union of India, (1970) 1 SCC 67, 75, para 18.

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of SK Sahoo and M S Raman, JJ. disposed of the petition leaving the petitioner with liberty to seek appropriate remedy before appropriate forum in accordance with law.

The instant writ petition in the nature of Habeas Corpus was filed by the petitioner , who is the mother of a minor child, for the custody of the minor, which is currently with respondent 5, the father of the minor child.

Reliance was placed on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, wherein it was observed

“14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ Court has jurisdiction.

19. Habeas corpus proceedings do not justify or examine the legality of custody. Habeas corpus proceedings are a medium through which the custody of the child is addressed to the discretion of the Court.

The judgment also states that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

It was also noted that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases that the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

The Court thus held “when the alternative efficacious remedy is available, we are not inclined to entertain the writ petition which is in the nature of habeas corpus.”

[Koushalya Das v. State of Odisha, 2022 SCC OnLine Ori 2008, decided on 07-06-2022]


Advocates who appeared in this case :

Mr PK Das, Advocate, for the petitioner;

Mr AK Sharma, Advocate, for the respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of S. Muralidhar, CJ and R.K. Pattanaik J. dismissed the petition and upheld the judgment by CGIT, Bhubaneshwar declining the prayer of the Petitioner as regards the maintainability of the dispute before it.

The facts of the case are such that Central Mine Planning & Design Institute Ltd. filed the instant petition questioning an order dated 24-01-2011 passed by the Central Government Industrial Tribunal, Bhubaneswar (CGIT) deciding the preliminary issue of maintainability against the Petitioner and in favour of Opposite Party 2-Workers’ Union. The present dispute has its origins in an order dated 14th September 1992 passed by the Central Government referring the dispute in regard to the benefit of special TA/DA and in the matter of holidays or festivals.

Counsel for the petitioner Mr. N.K. Mishra submitted that Section 7-B (1) of the Industrial Disputes Act, 1947 (ID Act) which sets out the conditions under which the Central Government “may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for adjudication of the industrial disputes”. The two conditions are that (i) the dispute should involve questions of national importance or (ii) are of such a nature that the industrial establishment situated in more than one State is likely to be interested in or effected by such disputes. According to Mr. Mishra the nature of the dispute referred for adjudication by the Central Government in the present case satisfies both the above requirements. Thus, the word ‘may’ occurring in Section 7-B ID Act should be read as ‘shall’.

It was further submitted by the petitioner’s counsel that Section 7-B of the ID Act should be read with Section 10 (1-A) of the ID Act which states that if an industrial dispute involves question of national importance or is of such nature that industrial establishment situated in more than one State are likely to be interested in or affected by such dispute, the Central Government “may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing referred the dispute for any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication”.

The Court observed that the expression used both in Section 7-A as well as Section 10 (I-A) of the ID Act is ‘may’ as qualifying what the Central Government can do. It is not mandatory for the Central Government, even if the twin conditionality are satisfied, to refer the disputes for adjudication to a National Tribunal. It may so happen that because of the placement of the parties, the dispute can well be adjudicated by a geographically proximate Tribunal. For instance, in the present case, although the Union which is espousing the workmen’s cause is located in Ranchi, the Petitioner has its Offices in all over India and therefore, vis-à-vis both the parties, a CGIT at Bhubaneswar would be proximate and convenient for them to adjudicate the dispute.

The Court remarked in the present day and age, when there are virtual courts, it is now possible for a Tribunal in Bhubaneswar to examine witnesses virtually all over the country, and therefore that inconvenience is a thing of the past and secondly, this dispute has been pending for more than three decades now and the Court does not consider it expedient at this stage to require the dispute to be referred to a National Tribunal for parties to start all over again before that Tribunal. That would be most inconvenient to all the parties.

The Court further observed that in terms of Section 7-B of the ID Act read with Section 10 (1-A) thereof it is not mandatory for the Central Government to make a reference of a dispute which is of national importance to a National Tribunal.

The Court held “the Court is not persuaded that in the present case, the CGIT has erred in declining the prayer of the Petitioner as regards the maintainability of the dispute before the CGIT, Bhubaneswar.” [Om Prakash Kumawat v. Hero Housing Finance Ltd., S.B. Civil Writ Petition No. 6199/2022, decided on 11-05-2022]


Appearances

For Petitioner(s): Mr. Prahlad Sharma

For Respondent(s): Mr. Pramod Kumar


Arunima Bose, Editorial Assistant has reported this brief.

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.

Case BriefsSupreme Court

Supreme Court: The Division Bench of M. R. Shah* and B.V. Nagarathna, JJ., held that where the Arbitrator appointed by the High Court had already declared the award, it is not open for parties to file a reference before M.P. Arbitration Tribunal with respect to the very claim/claims which were subject matter of arbitration. Noticing that the award had attained finality, the Bench while rejecting the respondent’s claim of award being void, stated that,

“Even the award or a nullity order has to be challenged before the appropriate forum/higher forum.”

Factual Matrix

An agreement was executed between the appellants and the respondent for construction of houses, with regard to which some disputes arose between the parties. The appellants contended that the respondent was supposed to complete the work within 18 months but,  despite granting repeated extensions, the contractor failed to complete the work, on account of which, appellants rescinded the contract.

Aggrieved by the order rescinding the contract, the respondent-contractor filed a writ petition before the High Court seeking direction to permit him to complete the work; which was disposed of on a joint consensus of the parties that the dispute shall be decided by the arbitrator i.e., Housing Commissioner, M.P. Housing Board.

Forum Shopping

The Arbitrator rejected the claim of the respondent-contractor and granted relief in favour of the appellants. Instead of challenging the said award by way of an application under Section 34 of the Arbitration and Conciliation Act, 1996, the respondent filed a fresh Reference Petition before the M.P. Arbitration Tribunal under Section 7 of the M.P. Madhyastham Adhikaran, Vindhyachal, Bhopal, Act, 1983.

The Tribunal dismissed the reference as not maintainable since claim made by the respondent had already been decided by the Arbitrator and the award had achieved finality. Later on, as an afterthought, the respondent-contractor filed a review petition before the High Court seeking clarification of the earlier order to the extent that by directing the adjudication of the dispute by the Housing Commissioner, it did not take away the jurisdiction of Arbitral Tribunal, which was dismissed by the Court.

Once again, the contractor approached the High Court with revision petition under Section 19 of the 1983 Act challenging the order passed by the learned Tribunal, by the impugned judgment the High Court allowed the said revision and quashed the order passed by the Tribunal while directing it to decide the reference/claim on merits and in accordance with law.

Findings

The Bench rejected the argument of the respondent–contractor that the earlier order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator and thereafter the award declared by the Arbitrator were non-est and void as Section 7B of the 1983 Act provides that no dispute can be referred to the Arbitration Tribunal unless the dispute is first referred for decision of the final authority under the scope of the term ‘works contract, on the basis of following findings:

(i) It was the respondent–contractor who approached the High Court submitting that he has invoked the arbitration clause;

(ii) The order of the High Court referring the dispute to the Arbitrator was a consent order; hence the claim was binding on the parties on the ground of ‘issue estoppel’.

(iii) The award of the Arbitrator had attained finality;

(iv) The review petition filed by the respondent-contractor for clarification of the earlier High Court order was rejected and the same also attained finality;

(v) The claims submitted before the Arbitrator; before the High Court and the claim submitted in Reference Petition before the Arbitral Tribunal under the 1983 Act were the same without any change;

(vi) In the subsequent reference petition before the Arbitral Tribunal there was no reference to the earlier order passed by the High Court referring the dispute to Arbitrator and the award passed by the Arbitrator. Thus, there was suppression of facts on the part of the respondent–contractor;

Decision

Holding that the award of the Arbitrator had attained finality and was binding on the parties, the Bench stated that there could not be any subsequent fresh proceeding with respect to the same claims. As no objections were raised by the respondent–contractor at the appropriate stage, the award could not be annulled subsequently.

Hence, the appeal was allowed. The impugned judgment and order of the High Court quashing and setting aside the order passed by the Arbitral Tribunal was quashed and set aside and the order of the Tribunal was restored.

[M.P. Housing and Infrastructure Development Board v. K.P. Dwivedi, 2021 SCC OnLine SC 1171, decided on 03-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellants: Bharat Singh, AAG

For Respondent: Kavin Gulati, Senior Advocate


*Judgment by: Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: In an appeal against the Himachal Pradesh High Court judgment which dismissed a petition after noticing that the appellant has an alternate remedy available, the bench of Dr. DY Chandrachud and MR Shah, JJ has summarised the principles related to the maintainability of a writ petition before High Courts.

Two important judgments on the “rule of alternate remedy”

Whirlpool Corporation v Registrar of Trademarks, Mumbai, (1998) 8 SCC 1

“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107

“In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Principles summarised by the Court

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

Background

In the present case, the High Court had dismissed the writ petition instituted under Article 226 of the Constitution challenging orders of provisional attachment on the ground that an alternate remedy is available. The appellant challenged the orders issued on 28 October 2020 by the Joint Commissioner of State Taxes and Excise, Parwanoo provisionally attaching the appellant’s receivables from its customers. The provisional attachment was ordered while invoking Section 83 of the Himachal Pradesh Goods and Service Tax Act, 20172 and Rule 159 of Himachal Pradesh Goods and Service Tax Rules, 20173 . While dismissing the writ petition challenging orders of provisional attachment the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law.

[Radha Krishna Industries v. State of Himachal Pradesh, 2021 SCC OnLine SC 334, decided on 20.04.2021]


*Judgment by Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Senior Advocate Puneet Bali, learned senior counsel appearing on behalf of the appellant

For State of Himachal Pradesh: Advocate Akshay Amritanshu

Case BriefsSupreme Court

Supreme Court: In a case where the petitioner sought recusal of Justice Dr. DY Chandrachud from hearing an application seeking recall of a previous order of which Justice Chandrachud a part of, the bench of Dr. DY Chandrachud and MR Shah*, JJ has not found any valid and good ground for recusal and has said that,

“Merely because the order might not be in favour of the applicant earlier, cannot be a ground for recusal. A litigant cannot be permitted to browbeat the Court by seeking a Bench of its choice.”

Background

The petitioner had instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act 2005 against a man with whom she had claimed to have entered into a relationship ‘in the nature of marriage’. She, however, was unable to prove this claim before the Karnataka High Court and hence, the High Court had, on July 31, 2018, noticed that,

“Domestic relationship means, the relationship between two persons who live or have at any point of time, lived together in a shared household. This concept has not been established by the petitioner.”

The petitioner, hence, instituted a case under Article 226 seeking that the decision of the Single Judge of the High Court dated July 31, 2018 “may be declared void/disabled/ recalled”.

It was her case that,

“In order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”

Order dated September 3, 2020

The Bench of Dr. DY Chandrachud and KM Joseph, JJ had declined to entertain the writ petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated July 31, 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.

It had said,

“A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”

Present order

The Court considered the following factors and dismissed the application at hand:

  • earlier one other application was filed by the petitioner to recall order dated 03.09.2020 which was dismissed.
  • order dated 03.09.2020 was pronounced after hearing the applicant.
  • earlier application for recalling of order dated 03.09.2020 was also dismissed after hearing the petitioner.

The Court also directed that the Registry shall not accept any further miscellaneous application on the subject matter of order dated 03.09.2020 or on the two orders dismissing the application for recall of the order dated 03.09.2020.

[Neelam Manmohan Attavar v. Manmohan Attavar, 2021 SCC OnLine SC 58, decided on 05.02.2021]


*Justice MR Shah has penned this judgment

Also read

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The 3-judge bench Ashok Bhushan, R. Subhash Reddy and MR Shah has reiterated that when the main judgment of the High Court has not been challenged, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court.

The Court was hearing a case relating to suspension of an employee of a cooperative bank after conduct of disciplinary authority.

  • The Cooperative Tribunal later imposed a punishment of compulsory retirement on the petitioner.
  • This order was challenged before the High Court but the same was dismissed.
  • Hence, the petitioner filed an SLP before the Supreme Court which was also dismissed in 2015.
  • A review petition was filed which was also dismissed in 2016.
  • A curative petition was also dismissed in 2016.
  • Then the review petition was again filed which was dismissed by the High Court vide its judgment dated 06.02.2020. Hence, this SLP.

The Court noticed that in Bussa Overseas and Properties Private Limited v. Union of India, (2016) 4 SCC 696 has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle

Applying the same principle to the present case, the Court said that against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner.

“ When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted.”

[T.K. David v. Kuruppampady Service Co-operative Bank Ltd., 2020 SCC OnLine SC 800, decided on 05.10.2020]

Kerala High Court
Case BriefsHigh Courts

A very efficacious, substantive and procedural mechanism to facilitate the realisation of deserving and intrinsic value of encumbered estates and other immovable properties – within the annals of the Transfer of Property Act, 1882 — strangely appears very rarely to have been invoked in Courts, which impression is inevitable because the case law on it is scarce, if not, none.

— Kerala High Court

Kerala High Court: Devan Ramachandran, J., addressed matter surrounding Section 57 of the Transfer of Property Act, which has attracted very little or no reported Judgments in India.

Section 57 of the Transfer of Property Act, 1882 enables any party to the sale of immovable property burdened by an encumbrance, to apply to Court for a declaration that the said property is freed from such encumbrance on deposit of sums to be adjudged by it; and for the issuance of a conveyance order or vesting order, proper for giving effect to the sale.

Bench examined the above-stated Section of the TP Act vigilantly from both academic and practical ambit.

Purpose of Section 57 of the TP Act

Intended to assist any party to the sale of immovable property, which is subject to an encumbrance, to fructify the sale for its fair value after receiving in deposit — for payment to the incumbrancer — the capitalised value of the periodical charge, or capital sum charged on the property, together with incidental charges.

Thus, the said Section enables the parties to a sale to invoke the jurisdiction of the Court for the purpose of fulfilling their contracts, notwithstanding the encumbrances on the property.

Section 57 of TP affirmatively provides that on the application of a party to a sale, the Court may, if it thinks fit, direct or allow payment into Court.

This section is intended to facilitate sale out of court, as much as it is for sale by a court or in execution of a decree.

When can Section 57 of TP Act not be applied? | Golden Rule 

In the Madras High Court decision of  Mallikarjuna Sastri v. Narasimha Rao, (1901) ILR 24 Mad 412, held that the said Section,

cannot be applied when it comes to a charge or encumbrance already adjudicated by a court and which has become part of a decree or even in a case of adjustment of a decree out of court.

Facts of the Case

Appellant and Respondents are siblings and their father’s property was partitioned in the year 1980, through a partition deed.

Partition Deed consisted of a covenant that both he and his brother must pay Rs 500 each to their sister within a year, failing which she can recover it, for which the said amounts would stand charged on the respective properties.

Contentions

The Sister, who is also the first respondent in the present matter refused to accept the stated amount when offered by the appellant, due to which he is still obligated and burdened with the same.

Appellant due the stated obligation has been unable to execute the sale deed and in view of the circumstances, he approached the District Court under Section 57 of the TP Act volunteering to deposit the amount of Rs 500 in favour of the first respondent in order to obtain the declaration that the property is free from any encumbrance.

Though, the above-stated application to the District Court was dismissed on grounds of maintainability.

By the present appeal, the appellant has assailed the District Court’s Order.

Developments in the present appeal

Bench in an earlier order had directed the first respondent to file an affidavit stating that she is unwilling to take the money from the appellant with reasons.

The first respondent filed the affidavit stating that she is unwilling to take the said amount but the reasons placed by her were that due to personal issues with appellant along with the said amount not being offered within the stipulated time as stated in the Partition Deed she refused the said amount.

Counsels for Appellant and First Respondent are P. Thomas Geeverghese and Shiju Varghese, respectively.

Decision

On perusal of the facts and circumstances of the matter, Court stated that when the amount of Rs 500 alone stands charged on the property as a capital sum, without any further obligation on the appellant towards interests or other incidental expenses, it is irrefragible that if the appellant pays it to the first respondent or deposits it in the Court, the said encumbrance would stand extinguished.

In the affidavit filed by the first respondent, she only asserted that her refusal for the payment is for personal reasons.

Looking at the above stated, Court determined whether the appellant was justified in invoking Section 57 of the TP Act or not?

Bench stated that in light of the circumstances of the present case, there can be little divergence that the provisions of Section 57 of the TP Act would come to play.

Court noted that the first respondent only says that ‘her conscience is not willing to accept the money’ without showing any cause against its tender or deposit by the appellant.

Hence, in view of the above circumstances, Court finds the decision of District Court erring, since the appellant has clearly averred that he intends to sell his property as per the sale agreement submitted by him.

Since the first respondent failed to show any legally acceptable cause, the appellant is entitled to a declaration under Section 57 of the TP Act.

Therefore, the District Court’s decision is set aside and the appeal is allowed while permitting the appellant to tender the amount of Rs 500 to the first respondent by depositing it in the District Court.

In view of the above, the property will stand free from any charge, created by the Partition Deed. [M.P. Varghese v. Annamma Yacob, 2020 SCC OnLine Ker 3321, decided on 05-08-2020]

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., while addressing the maintainability and legality of a petition filed under Section 482 of Criminal Procedure Code, 1973 held that, legislature in its wisdom has provided for Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against all “orders” and has not made any exception to orders relating to custody.

Petition was filed seeking setting aside of the Order passed in complaint under the Protection of Women from Domestic Violence Act, 2005 by the Metropolitan Magistrate.

Due to a rift in the relationship of the husband and wife, respondent took away the three children to live with him under a separate roof.

Protection Order & Custody Orders

By way of the present petition, petitioner sought reliefs such as Protection Order under Section 18 of the Protection of Women from Domestic Violence Act, 2005.

Wife sought a restraining order against the respondent from dispossessing the wife from the shared household and monetary reliefs such as medical expenses and rentals including household expenses.

In line of reliefs, Custody Order with respect to the three children were also sought under Section 21 of the Act. Application for various interim reliefs was also sought under Section 23 of the Act.

Unhindered Access to Mother

Court noted that for the sake of emotional quotient and robust psychological health, the mother should be provided unhindered access, if not physically then through video conferencing and the same was granted on 24th April, 2020.

Magistrates’ Decision

Custody of children was directed to be continued with the father as an interim measure visitation rights were granted the wife.

Petition not maintainable

Respondent’s counsel, Bobby Anand submitted that petitioner has a remedy of an appeal under Section 29 of the Act, hence the present petition is not maintainable under Section 482 CrPC.

Advocate Malvika Rajkotia, for the wife submitted that, a mother is best suited to look after the needs of growing daughters, particularly, the sensitivities of their emotional needs and biological requirements.

She also submits that youngest daughter is under 5 years of age and it is a mandate under Section 6 of the Hindu Minority and Guardianship Act, 1956 that the child should be in care and custody of the mother.

Present Petition is maintainable in this Court as mere availability of alternate remedy cannot be a ground to disentitle the relief under Section 482 CrPC.

Analysis and Decision

Maintainability

Supreme Court has time and again spelt out clear restraints on the use of extraordinary powers and observed that the High courts should not go beyond those wholesome inhibitions unless the extraordinary circumstances cry for immediate and timely judicial mandate.

In the present matter, Court is not persuaded in to entertain the petition in its extraordinary power under Section 482 CrPC given the fact that there is a clear remedy of Appeal under Section 29 of the Act available.

Hence, facts and circumstances in the present matter do not call for any urgent intervention to permit the petitioner in bypassing the remedy available in the form of Statutory Appeal.

in view of the above, petition was dismissed.[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., refused to entertain a writ petition filed by a member of All India Services holding that the remedy lies with Central Administrative Tribunal.

Petitioner qualified the Civil Services Examination in the year 1986 and was allocated Indian Police Service (IPS) and assigned Haryana Cadre.

Petitioner assailed the empanelment dated 18-02-2019 made by UPSC and the subsequent appointment of respondent 4 as DGP, State of Haryana vide appointment order dated 18-02-2019.

Appointment of respondent 4 was initially challenged by the petitioner in the Supreme Court which was disposed of with the order that petitioner may approach the jurisdictional High Court.

UPSC Counsel raised an objection to maintainability and submitted that this Court has no jurisdiction to entertain the petition.

He contended that, IPS is an All India Service, and thus petitioner is amenable to the jurisdiction of Central Administrative Tribunal.

Senior counsel for the petitioner further submitted that the present petition had been filed in terms of the liberty granted by the Supreme Court and thus it is not open to respondents to raise any objection to its maintainability.

Decision

Petitioner is a member of an All India Service, which is covered under Section 14(1)(b)(i) of the Administrative Tribunals Act, 1985

Section 14(1)(b)(i) of the Act provides that, save as otherwise expressly provided in the Act, the Central Administrative Tribunal shall exercise on and from the appointed day, all the jurisdiction, power and authority exercisable immediately before that day, by all Courts in relation to all service matters concerning a member of any All India Service.

Section 3(q) of the Act defines ‘Service Matters’ as all matters relating to conditions of a service and includes matters with respect to tenure, confirmation, seniority, promotion etc.

Constitution Bench of Supreme Court observed in the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that the Tribunals created pursuant to Article 323-A or under Article 323-B of the Constitution of India are competent to hear matters entrusted to them and will continue to act as only Courts of ‘first instance’ in respect of the areas of law for which they have been constituted.

Insofar as the jurisdiction of the High Courts is concerned, Supreme Court further observed that the jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution of India, is a part of the inviolable basic structure of the Constitution.

While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred on the High Courts and the Supreme Court.

Thus, in view of the above stated Supreme Court decision, High Court cannot entertain the present petition and remedy of the petitioner lies only before the CAT. [Prabhat Ranjan Deo v. UPSC, 2020 SCC OnLine Del 738 , decided on 13-07-2020]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar, J. dismissed the petition on grounds of maintainability.

The present writ petition was filed for following reasons:

  1. to quash the bill for the month of November-2019 as it relates to Rs 10,10,903 allegedly shown as dues up-to October-2017 for which neither any detail nor any earlier arrear has been 
  2. to issue direction upon the respondents to give the details of arrear
  3. to issue direction upon the respondents not to levy Minimum Guarantee Charges during the period of disconnection since the disconnection of the line itself was absolutely illegal and 
  4. to issue direction upon the respondents to accept the current monthly charges from the month of November-2019 onwards.  

The counsel Navin Kumar for the respondent-JUVNL, raised a preliminary objection as to the maintainability of the writ petition and submitted that the respondent-JUVNL has constituted five different forums for redressal of the consumers grievance in view of Section 42(5) of the Electricity Act, 2003 and they have an efficacious/statutory remedy of filing a complaint before the concerned forum on the present issue. 

The Court dismissed the present petition on grounds of maintainability and held that as the respondent-JUVNL has already constituted Consumer Grievance Redressal Forums at five different places for adjudication of electricity dispute, the present writ petition is not maintainable at this stage and directed to prefer a complaint before the Electricity Consumer Grievance Redressal Forum.

In view of the above, the writ petition is disposed of. [Jahirul Islam v. Jharkhand Urja Vikas Nigam Limited, 2020 SCC OnLine Jhar 229, decided on 02-03-2020]

Hot Off The PressNews

Supreme Court: A 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has refused to entertain a PIL seeking a direction to the Punjab government to set up a special investigation team (SIT) to probe the death of a government official whose body was found on railway track near Jalandhar Cantt station in November 2017.

The bench said that it was not inclined to entertain the plea and granted liberty to the petitioners to approach the Punjab and Haryana High Court with their grievances. It said,

“We are not inclined to entertain this petition under Article 32 of the Constitution of India, on the ground stated before the Court by the petitioner-in-person that as a law student the petitioner has no time to move the High Court.”

The plea, filed by three law students Deepali Vashishth, Prateek Raj and Anurag Mani, said that Rahul Bhatia was posted in the Regional Passport office at Jalandhar and on November 15, 2017, his body was found near the railway station. They said that Bhatia’s parents, who are residing in Delhi, were informed by the police about it but no proper investigation was carried out in the case. They have said in the plea that several complaints and representations were made to the top authorities but no action was taken in the matter by the police.

The plea also sought a direction to the authorities to ensure that in every case of death, where proceedings under section 174 of the CrPC is initiated, a charge sheet is submitted to the judicial magistrate after conducting probe. Section 174 of CrPC deals with inquiry by police in cases of suicide or unnatural deaths.

 

(With inputs from PTI)

Op EdsOP. ED.

Efficacy of Foreign Decree of Divorce

We are in some context or the other confronted with the question as to “how good is a decree of divorce granted by a foreign court with regard to a Hindu couple married in India?” This question is becoming a familiar question with all of us.

The foremost answer that would surface with us would be, that, the Hindu couple residing/working in a foreign land ought to be governed by the matrimonial laws in force at that place. As a corollary, the decree of divorce granted by the foreign court should be valid.

However, the pride of the place is taken by Section 1 of the Hindu Marriage Act, 1955 which reads thus:

  1. Short title and extent—(1) This Act may be called the Hindu Marriage Act, 1955.

      (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

It is for this reason that Hindus married as per Hindu Rights in India, although settled abroad, are primarily required by law to process divorce proceedings only as per the said Act i.e. applying the Hindu Marriage Act, 1955.

The other emphasis of the Indian law is the mandate of Section 13 of the Hindu Marriage Act, 1955. The said Section mentions that divorce can be taken exclusively on the stated grounds. When the grounds have been specifically elucidated, it excludes the scope of granting divorce on any other ground. Few grounds mentioned in the said Act are as follows:

(i) petitioner has been treated with cruelty;

(ii) petitioner has been deserted;

(iii) respondent has ceased to be a Hindu; and

(iv) respondent has been of an incurable unsound mind.

To complete the narration of codified law on the subject, reference to Section 13 of the Code of Civil Procedure, 1908 is essential which reads as under:

  1. When foreign judgment not conclusive —A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

            (a) where it has not been pronounced by a court of competent jurisdiction;

             (b) where it has not been given on the merits of the case;

            (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

             (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

             (e) where it has been obtained by fraud; and

             (f) where it sustains a claim founded on a breach of any law in force in India.

The above provisions were considered in detail by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi[1]. This Court ruled that:

(a) Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.

(b) It was held that the decision must be given on the “merits” of the case i.e.:

           (i) The ground of divorce in the decision of the foreign court should be a ground available under the Hindu Marriage Act, 1955. For instance, if the ground of the foreign decree was cruelty on the applicant, this would be acceptable, as “cruelty” is a stated ground under the Hindu Marriage Act, 1955. But the same cannot be said for “irretrievable breakdown of marriage”, as this is not a ground under the Hindu Marriage Act, 1955.

          (ii) The decision should be a result of contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.

(c) Refusal to recognise the law of India, is covered by saying that the ground for divorce in the foreign decree is a ground available under the Hindu Marriage Act, 1955.

(d) The foreign judgment was obtained as opposed to natural justice. The concept of natural justice is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play. This is a larger concept but shortly can be stated as essential trappings in order to have a fair adjudication. Where for instance respondent was denied documents filed by the other side or where the respondent was denied the opportunity to cross-examine witnesses of the other side, without a justifiable cause, these would be opposed to the principles of natural justice.

(e) Where the foreign decree was obtained by fraud. Fraud at any stage vitiates legal proceedings. It is often said that law and fraud cannot co-exist.

In Satya v. Teja Singh[2], when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.

Law on this has hardly undergone any development in the last 27 years. Y. Narasimha Rao case[3] stands alone, so to say.

Briefly, the expression “where it has not been given on merits of the case” was commented upon by the Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd.[4] The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that:

A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.

Situation before the Indian Courts

In the above background, Indian courts were confronted with situations wherein Hindu couples married in India as per Hindu Law, settled in a foreign land, develop matrimonial disputes and approach a foreign court. This situation demanded the Indian courts to determine whether the decrees passed by the foreign court as a consequence of the matrimonial disputes between the Hindu couples settled abroad, had any efficacy in India.

 Concept of “Comity of Courts”

This is a view taken by the courts, which is known as the concept of “comity of courts”. This means that courts in various countries grant probity to decrees of foreign courts. The understanding being, the courts all over the world adjudicate the rights of the parties and therefore, show mutual respect. This principle was first laid by the Court of England and subsequently approved by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw[5]. The Court recorded the observation that:

                9. … it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.

The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.

The Supreme Court of India in another case Alcon Electronics (P) Ltd. v. Celem SA of FOS 34320 Roujan[6], recorded the following:

                19. The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC.…

These are the competing considerations before the Indian courts. That is the codified laws and the concept of “comity of courts”. These have to be reconciled by the Indian courts.

In a different context, namely, custody of child, in an inter-country dispute, Supreme Court of India had occasioned to opine in Ruchi Majoo v. Sanjeev Majoo[7]. It may be clarified that custody of child matter is to be viewed completely differently as against dissolution of marriage. This is for the reason that in custody of child matters, welfare of the child is of paramount consideration by the Court.

Supreme Court of India took the view that:

Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 CPC. … Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement.

In that context, Supreme Court of India in Prateek Gupta v. Shilpi Gupta[8], balanced the foreign court order on custody by holding that it is one of the relevant factors without getting fixated therewith. Court held that:

           32. … while examining the question on merits, would bear in mind the welfare of the child as of paramount and predominant importance while noting the pre-existing order of the foreign court, if any, as only one of the factors and not get fixated therewith.…

A different situation arose before the Delhi High Court in Harmeeta Singh v. Rajat Taneja[9]. Here the husband had filed proceedings in the foreign court. Wife has approached the Delhi High Court by way of a civil suit. High Court restrained the husband for continuing with the proceedings in the foreign court, as the wife had no spouse visa, she possibly could not defend the proceeding in the foreign court. Of course, there was no occasion for the wife to submit to jurisdiction of the foreign court.

Broadly Two Categories of Cases

Broadly speaking two categories of cases can be carved out on the basis whether the opposite party in the foreign court appeared and actively participated or not. Therefore, the subject can be easily stated under the following two heads:

(i) Did Not Attend Nor Actively Participated

The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as, the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.

As the non-applicant did not submit to the jurisdiction, it is further said that this non-applicant did not chance a judgment in his/her favour. Challenge to the foreign court decree in such a situation may be entertained by the Indian courts. It cannot, therefore, be said that having participated, having submitted to the jurisdiction and having made submissions before the foreign court, now because the verdict of the foreign court is against the non-applicant, he is now challenging the same in the Indian court.

The non-applicant must be served with notice of the foreign court proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is a situation, Indian courts are likely to declare the entire foreign court proceedings as void.

(ii) Did Attend And Actively Participated

This question automatically answers itself, when contrasted with the above answer. Having attended and having participated, the non-applicant (respondent) in the foreign court cannot complain that he/she was not heard, if the respondent had voluntarily submitted to the jurisdiction of the foreign court. The respondent is free to make an alternative plea under the jurisdiction of the foreign court for grant of alimony or monthly maintenance. To adjudicate the same, the foreign court would be free to follow laws laid by its own land.

Another form of “attend and actively participate” is when the non-applicant consents to the passing of the decree of divorce.

Consequences of a Foreign Decree of Divorce Being Held as Invalid

Respondent cannot sit with the comfort that he/she has a decree for divorce from a foreign court. Consequences may appear soon thereafter or maybe years later. The other side may apply for its cancellation in the Indian court. In such an eventuality if:

       (i) The respondent remarries, he may be prosecuted for bigamy. Case in point is Y. Narasimha Rao v. Y. Venkata Lakshmi[10].

       (ii) Opposite party may file for maintenance.

       (iii) Issue of custody of children can be raised.

       (iv) Opposite party may claim share in the property of the respondent.

Executability of Foreign Court Decree

There is a provision in Indian law for execution of foreign court decrees. This is contained in Section 44-A CPC read with Section 13 CPC.

Although Section 44-A CPC is couched in general phraseology and would seem to apply to the execution of foreign decrees in general. However, when it comes to specific laws i.e. the Hindu Marriage Act, 1955 or the issue of custody of the child, Section 44-A seems to have little application.

These specific Acts have an overbearing effect on Section 44-A CPC. This is clear from sub-section (3) of Section 44-A which makes it clear that this is subject to the decree falling in any of the exceptions contained in Section 13 CPC.

Conclusion

The above discussion only shows how complicated the position is regarding the validity of a foreign court decree of divorce. It can perhaps be stated that a Hindu couple married in India would be well advised to seek a divorce from an Indian court only.

There can be little comfort from the fact that the foreign court decree was passed and some time has elapsed or that there is inaction of the opposite side. Consequences may appear several years later.

A Probable Way Ahead

The process of simplification could begin for instance from a Hindu couple permanently settled abroad. If facts show that they were indeed permanently settled in the foreign land, then, such a couple could be said to have causal and most immediate territorial connection with the foreign land. It could be held that their court of competent jurisdiction could be foreign court and their proper law i.e. codified law would be the foreign law. This is stated on the strength of principles given by the Supreme Court of India in Surinder Kaur Sandhu v. Harbax Singh Sandhu[11]:

                     10. … The modern theory of conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case.… Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage.…

By adopting this approach a practical way may appear for couples settled abroad. They may not need to have recourse to Indian courts. The development of law could march in this direction.

——————————————————–

† Advocate, Supreme Court of India

[1]  (1991) 3 SCC 451

[2] (1975) 1 SCC 120

[3] (1991) 3 SCC 451

[4] (2001) 5 SCC 265

[5] (1987) 1 SCC 42, 47

[6] (2017) 2 SCC 253, 262

[7] (2011) 6 SCC 479

[8] (2018) 2 SCC 309, 330

[9] 2003 SCC OnLine Del 60 : (2003) 2 RCR (Civ) 197

[10] (1991) 3 SCC 451

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, CJ. and V. Kameshwar Rao, J. dismissed an appeal against the order of a Single Judge whereby he closed appellant’s right to file list of witnesses as well as evidence by way of affidavit.

The appellant had filed a suit for specific performance of an Agreement to Sell entered into between the parties. The respondents filed a written statement thereto. The issues were framed. Thereafter, counsel for the respondents informed the appellant regarding the death of Defendant 1. An application under Order 22 Rule 4 CPC was filed by the appellant to implead legal heirs of Defendant 1. Subsequently, the said legal heirs were impleaded in place of Defendant 1. As a matter of fact, the Joint Registrar closed the right of the appellant to lead evidence. When the matter was listed before the Single Judge, he declined appellant’s prayer for extension of time to file list of witnesses as well as evidence by way of affidavit. Aggrieved thereby, instant appeal was filed.

The High Court considered the matter and found favour with the submission of the respondent who challenged the maintainability of the appeal inasmuch as the impugned order was not a judgment and therefore not appealable. The High Court held that the order under challenge did not amount to a judgment conferring a right to appeal under Section 10 of the Delhi High Court Act, 1966. Therefore, the order impugned was not an appealable order under Section 104 read with Order 43 Rule 1 CPC. Resultantly, the appeal was dismissed holding it to be not maintainable. [Kushal Infraproject Industries (India) Ltd. v. Umed Singh,2018 SCC OnLine Del 12009, decided on 22-10-2018]

Case BriefsHigh Courts

Karnataka High Court: In the petition dealing with relief sought against some public bodies and private parties in Bengaluru under Articles 226  and 227 of the Constitution of India without first approaching the bodies or their tribunals, the Single Bench of Vineet Kothari, J. held that it cannot be undertaken in the exercise of the extraordinary jurisdiction of the Court under Article 226.

In the present case, the petitioners prayed to quash a deed executed by the respondents declaring it to be illegal and invalid. The Court, while considering the writ petitions said that the petitioners ought to have brought their grievances to the notice of the  public bodies concerned themselves to take action according to law and pass appropriate reasoned orders. Also, noting that two of such appeals were pending before the competent Tribunal, the Court ruled that it would lead to undesirable scattering of litigation. An all-sweeping kind of petition under Article 226 should not be used by the parties unless the public bodies have dealt with their grievances and the appellate mechanism provided under the relevant statutes has been fully exhausted. Therefore, these type of writ petitions are not maintainable. [V. Dhamodaran v. Bruhat Bangalore Mahanagara Palike, Writ Petitions Nos. 3881-3883/2014 (LB-BMP), decided on 28.11.2016]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether an appeal against the judgment of the Single Judge in an international arbitration matter is appealable to the Division Bench or to put it otherwise, whether the intra-court appeal would lie because of the Letters Patent, the Court held that such appeal is maintainable before the division bench and has to be treated as an appeal under Section 50(1) (b) of the Arbitration and Conciliation Act, 1996 and has to be adjudicated within the said parameters.

Rejecting the argument that the Letters Patent Appeal was not available in arbitration matters and Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015, the Court held that Section 13 of the 2015 Act bars an appeal under Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided under Section 5 of the 2015 Act where a forum is created, i.e., Commercial Appellate Division. The Letters Patent Appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. Section 50(1)(b) of 1996 Act has not been amended by the 2015 Act that has come into force on 23.10.2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable.

The bench of DIpak Misra and C. Nagappan, JJ, hence, held that a conspectus reading of Sections 5 and 13 of the 2015 Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a Letters Patent Appeal is maintainable before the Division Bench. [Arun Dev Upadhyaya v. Integrated Sales Service Ltd, 2016 SCC OnLine SC 1053, decided on 30.09.2016]