Monthly Archives: April 2020

Distinction Between – ‘Testator’ and ‘Attestors’

In Nagulapati Lakshmamma v. Mupparaju Subbaiah, (1998) 5 SCC 285, after referring to Section 63 of the Indian Succession Act, 1925 it was held as under:         “The section makes a vital distinction between the testator and the attestors in the matter of signing the Will. The testator may sign or affix his mark himself or direct some other person to sign in his presence. The reason for such a provision is quite obvious. Many a time, people who are desirous of making testamentary dispositions may be physically incapacitated from signing their names or affixing their marks on account of illness or other causes. Such persons should not be deprived of an opportunity of making a Will. Such persons can instead of signing or affixing their marks themselves can direct some other person to sign in their presence. But in the case of attestors such an enabling provision is absent. The section expressly states that each of the witnesses shall sign the Will in the presence of the testator. The privilege or power of delegation, if we may say so, is not available to the attesting witnesses under the section. When the same section makes a distinction expressly between a testator and an attestor it is not possible to accept the contention that an attestor can also direct some other person to sign or make a mark on his behalf. If a witness to the execution of the Will chooses to do so, he is not an attesting witness as there is no attestation by him as contemplated by Section 63(c) of the Indian Succession Act. Consequently, he will not be an attesting witness for the purpose of Section 68 of the Indian Evidence Act. Laxmi Kant v. Smt. Ganga Devi, 2018 (5) AWC 5141.

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Residents Welfare Society – Elected Office Bearer Cannot Be Removed by No Confidence Motion

A Residents Welfare Society is not a co-operative society and, therefore, the law laid down by the Hon’ble Apex Court in Vipulbhai M. Chaudhary v. Gujarat Co-operative Milk Marketing Federation Ltd., (2015) 8 SCC 1, would not be squarely applicable to it. Otherwise, a member elected as an office bearer of a society cannot be removed from office by way of no confidence in absence of a specific provision in that regard by taking recourse to democratic principles. Because the general principle that the authority which has power to appoint has power to remove is not applicable to elected representatives.

In Mohan Lal Tripathi v. District Magistrate, (1992) 4 SCC 80 it was held as under:         “Democracy is a concept, a political philosophy, an ideal practiced by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a fundamental right nor a common law right but a special right created by the statutes, or a political right or privilege and not a natural, absolute or vested right. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. Right to remove an elected representative too, must stem out of the statute as in the absence of a Constitutional restriction it is within the power of a Legislature to enact a law for the recall of officers. Its existence or validity can be decided on the provision of the Act and not as a matter of policy. Sudha Srivatsava v. Registrar, Firms, Societies and Chits, 2018 (5 ) AWC 5160.

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Legitimacy of A Child – Born from a marriage which is null and void

In sub-section (1) of Section 16 of the Hindu Marriage Act, the Legislature has stipulated that a child born from a marriage which is null and void under Section 11 of the Hindu Marriage Act is legitimate, regardless of whether the birth has taken place before or after the commencement of the Amending Act No. 68 of 1976. Legitimacy of a child born from a marriage which is null and void, is a matter of public policy so as to protect a child born from such a marriage from suffering the consequences of illegitimacy. Hence, though the marriage may be null and void, a child who is born from the marriage is nonetheless treated as legitimate by sub-section (1) of Section 16 of the Hindu Marriage Act. One of the grounds on which a marriage is null and void under Section 11 read with clause (i) of Section 5 is that the marriage has been contracted when one of the parties had a spouse living at the time of marriage. A second marriage contracted by a Hindu during the subsistence of the first marriage is, therefore, null and void. However, the Legislature has stepped in by enacting Section 16(1) to protect the legitimacy of a child from such a marriage. Sub-section (3) of Section 16, however, stipulates that such a child who is born from a marriage which is null and void, will have a right in the property only of the parents and none other than the parents. Union of India v. V.R. Tripathi, (2019) 1 UPLBEC 28.  

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Dispute with Regard to – Enrollment of Fresh Members

The requirement of Section 4-B of the Societies Registration Act is for all the societies at the time of registration/renewal of a society, therefore, requirement under Section 4-B of the U.P. Act No. 23 of 2013 (vide which Section 4-B was added) can be applied in pending cases also. If there is a dispute with regard to the enrollment of the fresh members, the Registrar can direct the parties concerned to produce the minutes book, cash book, membership fee receipts etc. to establish that the enrollment was in terms of the bye-laws. If the Registrar examines the validity of the enrollment of the members on the basis of the aforesaid documents, it would ensure that rank outsider could not be able to control the affairs of the society on the basis of fake documents.         Under Section 4-B, scope of inquiry by Registrar is to see validity of enrollment of members on the basis of documents referred in Section 4-B and to ensure that outsiders may not be able to control the affairs of society on the basis of fake documents. Anjuman Forogh-E-Islam v. State of U.P., 2014 (5) ADJ 673.

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Rent Law – Notice Sent Under Postal Certificate

In the case of Sumitra Devi vs. Sampuran Singh (2011) 3 SCC 556, which has been relied upon by learned Senior Counsel for the Appellant, this Court has held that “it will all depend on the facts of each case whether the presumption of service of notice sent under postal certificate should be drawn. It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such presumption is expected to be drawn even in the case of a letter sent under postal certificate.” Considering the facts and circumstances of that case, this Court held the notice sent under certificate of posting to be sufficient service. In the case of Ranju vs. Rekha Ghosh (2007) 14 SCC 81, this court was considering a case where one month’s notice was to be given to the tenant for eviction. After considering the provisions of the relevant Tenancy Act, Transfer of Property Act and the Bengal General Clauses Act, it was held that “clause (6) provides mere “one month’s notice”; in such event, the said notice can be served in any manner and it cannot be claimed that the same should be served only by registered post with acknowledgement due.” In the facts of that case, it was held that service of notice sent under certificate of posting was sufficient. Similar is the case at hand, where the Act provides for that ‘the landlord has given a notice…’, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service. While considering a case of service of notice under the Companies Act, this Court, in the case of V.S. Krishnan vs. Westfort Hi­Tech Hospitals (2008) 3 SCC 363, has held that service of notice sent under certificate of posting would be sufficient where “there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption.”

From the perusal of the aforesaid Proviso to the Section 21(1) (b) of Uttar Pradesh (Regulation of Letting, Rent and Eviction) Act, 1972, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that “the landlord has given a notice in that behalf to the tenant”. Mohd. Asif Naseer v. West Watch Company, Civil Appeal No. 2375 of 2020 (Arising Out of SLP (C) No. 29649 of 2016).

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Right to Reside in Matrimonial Home – No Liability of Builder

A married woman is entitled to live, subsequent to her marriage, with rest of her family members on the husband’s side, in case it is a joint-property. If she resides in an accommodation as an independent family unit with her husband and children, the matrimonial home would be that residential unit. This right is embedded in her right as a wife. It is implicit under the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 in situations that statute is applicable. The Protection of Women from Domestic Violence Act, 2005 has recognised the concept of “shared household” in terms of Section 2(s) of this statute. Alienating an immovable asset to defeat the right of a victim lady under the said Act can constitute domestic violence, coming, inter-alia, within the ambit of the expression “economic abuse” under Section 3(iv) of 2005 Act. A Magistrate having jurisdiction under Section 19 of the Protection of Women from Domestic Violence Act is empowered to pass a residence order to protect a victim of domestic violence from being removed from her shared household. But for a husband to compel his wife to live in a separate household, which is not her matrimonial home, an order from appropriate legal forum would be necessary. There cannot be forcible dishousing of a wife from her matrimonial home.

When a builder has discharged his obligation by accommodating the original owners in the redeveloped portion as per a scheme, a lady married into that family would not be entitled to invoke the writ jurisdiction of the High Court to enforce her right to matrimonial home citing the provisions of the said statute, if her husband does not permit her to reside in the allocated portion. She does not have any independent claim on title or interest to that property having its genesis in that statute. Her claim of right to reside in her matrimonial home is sought to be projected by her as collateral to the statutory right of her husband to be rehoused or rehabilitated in the new building. But her right to reside in her matrimonial home stands detached from and is independent of the statutory scheme under the Maharashtra Housing and Area Development Act. Neither MHADA, nor the builder can have any further legal obligation to rehouse her. She was an occupier under Section 2 (25) of the MHADA Act, 1976 but such occupier status was dependent upon her husband’s independent right as part owner of the property. Her right flowing from her matrimonial status cannot get diffused with her right of rehousing or rehabilitation under the statutory scheme. Her right to reside in her matrimonial home does not flow from the 1976 Act. Aishwarya Atul Pusalkar v. Maharashtra Housing and Area Development Authority, Civil Appeal No. 7231 of 2012 (SC).

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Election of Committee of Management – Interference by Courts in the Process of Election

        In Shyamdeo Prasad Singh v. Naval Kishore Yadav, (2000) 8 SCC 46 as well as various other Judgments of the Hon’ble Apex Court the principle of law restraining the courts from interfering in the process of election after the elections are notified is equally applicable to the elections of the office bearers of the committee of management of the societies as well as the Committee of Management to be elected in accordance with the provisions of the scheme of administration of the educational institutions. The principles of law that the courts should keep their hand off in electoral matters and that all election disputes must be tries by the Election Tribunal, is also incorporated in the Constitution of India under Article 329 (b) of the elections of the Parliament or to the house or either house of the legislature, under Article 243 O for the elections of Panchayats and Article 243 ZG in the matter of elections of the municipalities. There is no reason as to why these time tested and settled principles should not be made applicable to the elections of the office bearers of the societies and for the Committee of Management under the scheme of administration of the educational institutions.

        In West Bengal State Election Commission v. Communist Party of India (Marxist), AIR 2018 SC 3964, it was held as under:

        “Thirdly, once the election process has commenced, it is trite law that it should not be interdicted mid stage. The electoral process is afforded sanctity in a democracy. That is the reason why in a consistent line of precedent, this court has insisted upon the discipline of the law being followed so that any challenge to the validity of an election has to be addressed by adopting the remedy of an election petition under the governing statute.” Kamlapati Singh v. State of U.P., (2019) 3 UPLBEC 1759.

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Non-Holding of Oral Inquiry – Is a Serious Flaw

In Salahuddin Ansari v. State of U.P., 2008 (3) ESC 1667, it was held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order or punishment. It was held as under:

        “Non-holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.         In Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541, while considering the question as to whether holding of an inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee.” Mohan Law Garg v. State of U.P., (2019) 2 UPLBEC 1184.

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Public Law Function – Concept of

The concept of public law function is yet to be crystallised. Concededly, however, the power of judicial review can be exercised by the Supreme Court under Article 32 and by the High Courts under Article 226 of the Constitution of India only in a case where the dispute involves public law element as contradistinguished from a private law dispute.

        General view, however, is that whenever a State or an instrumentality of a State is involved it will be regarded as an issue within the meaning of public law but where individuals are at loggerheads, the remedy therefore has to be resorted in private law field. Situation, however, changes with the advancement of the State function particularly when it enters in the fields of commerce, industry and business as a result thereof either private bodies take up public functions and duties or they are allowed to do so which primarily is a State function. The distinction has narrowed down but again concededly such a distinction still exists. Drawing inspiration from the decisions of the Supreme Court as also other courts, it may be safely inferred that when essential Governmental functions are placed or allowed to be performed by a private body they must be held to have undertaken a public duty or public function.

        When the ‘State’ merely authorizes a given ‘private’ action that action cannot automatically become one taken under ‘State Authority’. Private action would not be a public function. Which authorisations would have that Constitution triggering effect will necessarily turn on the character of the decision making responsibility placed in private hands. However described, there must exist a category of responsibilities regarded at any given time as so ‘public’ or ‘Governmental’ that their discharge by private persons, pursuant to state authorization even though not necessarily in accord with state direction, is subject to the Constitutional norms that would apply to public officials discharging those same responsibilities.         Governmental functions are multifacial. There cannot be a single test for determining public functions. Such functions are performed by a variety of means. Furthermore, even when public duties are expressly conferred by the statute, the powers and duties do not thereunder limit the ambit of a Statute, as there are instances when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles of natural justice. Many public duties are implies by the Courts rather than commanded by the legislature; some can even be said to be assumed voluntarily. There are, however, public duties which arise from sources other than a Statute. Roychan Abraham v. State of U.P., (2019) 2 UPLBEC 1148 (FB).

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Mere Lack of Efficiency and Skill – Does Not Constitute Misconduct

In Shabih Haider v. State of U.P., 2018 (1) ADJ 327 it was held that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority. The power of the State Government to place Government Servant under suspension is creature of the Statute and/or contract and the decision be taken keeping in view the letter and spirit of the Statute. The power of suspension arises when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding. It was also held placing reliance on decision of a Five Judge Bench of the Hon’ble Allahabad High Court in State of U.P. v. Jai Sing Dixit, 1974 ALJ 92, that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension of a Government Servant. Vijay Kumar Agarwal v. State of U.P., 2020 (1) AWC 646.

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