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DRT Solutions Weekly Mail – 90th Issue dated
29th January ’10
All Weekly mails right from 1st Issue to latest, click links
above
(1) Indian Judiciary – Vital Statistics:-
Daily News Paper ‘Nai Dunia’ in
its 26th Jan. issue published a special supplement which included
vital statistics on Indian Judiciary as under with our comments:-
(a)
Average time spent on each case is 25 minutes.
(b)
At the present rate of disposal, it will take 124 years to clear the
pendency
(c)
The Law Commission of India in its 124th Report published
12 years back recommended at least 5 times of the then existing strength of
the judges.
(d)
The pendency of
criminal cases is so huge in Delhi that it will take 466 years to clear the
same.
Our Comments:-
We have been emphasizing the deplorable state of affairs as well as the
suggestions for improvement in various weekly mails. There is no option
except being perfect on each date which will ultimately consume least
possible time instead of hurrying up or adopting any shortcut. Application
of modern management techniques combined with latest technology should
precede with mindless increase of number of judges. Till such time, the
litigant borrowers will have to bear the brunt by being more vigilant, alert
and knowledgeable. The defence by way of counter-claim is the only antidote
in the present circumstances.
(2) DRT Conference in Dec. 2010:-
There has been constant
enquiries about the next DRT Conference. Hence we have decided to hold the
next ‘DRT Conference’ at Indore on 25th (Saturday) and 26th
December 2010. It will be quite useful and brain storming to the Borrowers
and their Advocates. Tentatively it is felt that the following topics should
be covered:-
(a)
Analysis of most useful SC Judgments.
(b)
Practical suggestions for effective trials in DRTs.
(c)
Salient Features of Counter-claims and Damages.
(d)
Modern management techniques in Judicial Trials.
(e)
Success stories of our clients.
You are requested to
offer your suggestions which will be highlighted in the weekly mails for
interactions to evolve the final topics to be covered. As usual the entire
conference will be video and audio recorded with transcript. It will be an
unique opportunity for those interested in achieving satisfactory results in
DRT litigations.
DRT Solutions Weekly Mail – 89th Issue dated
22nd January ’10
(1) Scandal in DRTs – Importance of certified copies:-
It has been informed by one of the clients from Mumbai that one of the
POs (who was suspended earlier) had a collusion with the bank. Accordingly
part of the proceedings was subsequently changed and judgment favoring bank
was delivered. The party was vigilant and alert. He had taken certified
photocopies of the earlier and present proceedings. He submitted these
documents before the High Court which has asked the DRAT Mumbai to
investigate and submit a report.
The incorrigible bank officials may even influence the judicial officer
by corrupt means. Hence we have to be very careful and that is why we have
been insisting that always certified copies of the proceedings must be
obtained, scrutinized and kept in record.
It is pertinent to note that the Transparency International has already
reported that in India, the Police, Judiciary and Banks are one of the most
corrupt 10 departments. They can go to any extent and hence the public has
to be quite alert and vigilant in dealing with the public servants in these
departments.
(2) WS not required till OA Dismissal Application is decided:-
Few of our clients have been repeatedly enquiring that during the course
of adjudication of the application for OA Dismissal, the POs in DRTs are
pressing for submission of WS. In this connection, it may be noted that the
application for OA Dismissal is akin to an application under O-7 R-11 of
CPC. An important Supreme Court judgment is contained in the citation
AIR
2003 Supreme Court 759, Saleem Bhai vs State of Maharashtra,
extract of the Head Notes is as under:-
“Civil
P.C. (5 of 1908), O.7. R. 11 – Rejection of plaint – Application for – Can
be decided by Court on basis of averments made in the plaint –
Filing of written statement by contesting
defendant – Not necessary – Therefore,
direction to file written statement by trial court without deciding
application under O.7. R. 11 – Cannot but be procedural irregularity
touching exercise of jurisdiction by Trial court.”
DRT Solutions Weekly Mail – 88th Issue dated
15th January ’10
(1) Importance of Review in Indian Judicial System :-
The Judges in Indian Judicial System are heavily overloaded. In a typical
Indian High Court such as in Delhi, a Judge disposes off nearly 13,000 cases
yearly whereas in UK, a Judge in equivalent position disposes only 150
cases. Under such heavy load, the judge is destined to commit errors and
mistakes some of which definitely will be apparent on face of records on
account of following facts and circumstances:-
(1)
He will have no time to go through the pleadings
completely. As a result, he will not be able to grasp the real case and
hence will apply his common sense which will give rise to whims and fancies.
In USA, all pleadings, briefs and documents are read and understood by the
judge word by word. Complete proceedings are audio and video recorded and
also transcripted. The main purpose of the oral argument is an opportunity
for the judge to ask questions. The dates of the arguments are fixed and
known sufficiently in advance. Not more than 2 arguments are held in a day
and not more than 12 arguments are held in a month. There are no disposal
norms or time compulsion for writing judgments. Average time for writing
judgment is 7 to 9 months during which complete research is done and final
judgment is free from any error or mistakes. Under such facts and
circumstances only one can say that the judgment has achieved finality.
(2)
Since he does not understand the real matter, he will
not be able to raise correct questions during oral arguments.
(3)
Even he does not have time to permit or listen to the
complete oral arguments.
(4)
On account of above, all the required material facts
will not be judicially determined.
(5)
He has no time to read the rulings thoroughly and
hence is guided by the head notes which do not present the judgment as a
whole. Hence there is no real and correct application of law.
(6)
On account of huge load on the judges, the advocates
are also heavily overloaded. Further dates are not known in advance. Hence
proper presentation is also not made.
(7)
As a whole the majority of judgments will suffer from
errors or mistakes apparent on face of records.
(8)
Hence in the present circumstances, there is no remedy
except Review.
(9)
The above circumstances will also apply to Review and
hence repeated Review may be needed till the judgment is free from the said
errors and mistakes apparent on face of records.
(10)
If one does not do that the higher courts have tendency to find fault of the
litigants only.
(2) Ingredients of Review in Indian Judicial System :-
The following are the ingredients of Review:-
(1)
Some mistake or error apparent on face of records.
(2)
New and important matter or evidence which, after the
exercise of due diligence was not within the knowledge or could not be
produced at the time when the decree or order was passed or made.
(3)
Any other sufficient reason.
(4)
Deprivation of fundamental right or any legal right.
(5)
Misconception of fact and or law by the court or
advocate.
(6)
Violation of principles of natural justice.
(7)
Violation of law laid down by the Supreme Court.
(8)
On account of any suffering caused due to court.
DRT Solutions Weekly Mail – 87th Issue dated 8th
January ’10
Extent & Implications of Overriding Effect in Securitisation Act :-
Many of our clients
and several of visitors to our web site have been repeatedly asking about
the extent and implications of the overriding effect stipulated under Sec 35
of the Securitisation Act reproduced below:-
“35. The Provisions of this Act to override other laws – The
provisions of this Act shall have effect, notwithstanding anything
inconsistent therewith contained in any other law for the time being in
force or any instrument having effect by virtue of any such law.”
Our associate Mr.
N.K. Sharma, ex-Dy. G.M.(Law) did lot of legal research and prepared an
article which is reproduced below.
Securitisation Act, 2002 to Override Other Laws by Virtue
of Section 35 of the Act
- N.
K. Sharma ex-Dy. G.M. (Legal)
Introduction
1. This has reference to the news item
published in ‘Finance’ section of Economic Times dated 8
Jul, 2008 with the heading ‘SBI
seeks SC ruling on provisions of Securitisation Act’, an extract is
reproduced below for ready reference:
“New Delhi: State Bank of
India (‘SBI’) has moved the Supreme Court (‘SC’) seeking an authoritative
ruling on the provisions of the Securitisation Act. Can any other law
prevail over the provisions of the Securitisation Act? asked the country’s
largest bank challenging an order of the Orissa High Court. It had said that
the provision of the other law can supersede the Securitisation Act. A bench
headed by Justice B.N. Agrawal sought explanation from Noble Aqua and others
on SBI’s plea. Advocate Sanjay Kapur on behalf of SBI said that the concept
of the Securitisation Act has shifted from the rehabilitation of the company
to the recovery, as huge amount of public money is blocked in NPA. SBI, in
its petition, said, “A combined reading of Sections 35 and 37 of
Securitisation Act, 2002 (short for ‘The Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002’) has
overriding effect over other laws.” However, the High Court had said that
the provisions of the SICA, 1985 will prevail over the Securitisation Act,
2002.” In this context let us examine some decided cases on the subject.
When does the overriding effect operate
2. As per the rules of interpretation the provisions of an Act are to be
interpreted keeping in view the object of enactment of that Act. The
important aspect to notice is that the overriding effect of the provisions
of the Act, scheme or rules made there under would be that only when there
is anything inconsistent in the said Act or rules or scheme vis-a-vis the
other laws or provisions. If the rules or schemes made under the Act are
silent on any particular subject matter and the other law requires any
particular action being taken in respect there of, such a law would have to
be complied with.
2.1 As
held by Hon’ble Supreme Court in the important decisions rendered in
Karunanidhi Vs. UOI (1979) 3 SCC 431; Hoechst Pharmaceuticals Ltd Vs. State
of Bihar AIR (1983) SC 1019 and other cases, the material test of
inconsistency is that both the provisions under consideration should not be
able to stand together i.e., if one is followed, the other, in the result,
would be violated. This may arise by reason of direct conflict or indirectly
by the later law occupying the same field, as the earlier one. It is in this
context that in several schemes of the BIFR (short for ‘Board for Industrial
and Financial Reconstruction’) where
fresh issue of share capital in case of merger or other cases is envisaged,
the approval of the Controller of Capital Issues earlier required under the
Capital Issues (Control) Act, 1947 has been specifically put out of the
way.
2.2 Subsequently,
hon’ble Supreme Court in Maharashtra Tubes Ltd. Vs SICOM (1993) 78 Comp Cas
803 (SC), has held that the special legislation SICA, 1985 was to prevail
over the provisions of the earlier special legislation State Financial
Corporations Act, 1950.
2.3 However,
in a latest judgment Hon’ble Supreme Court in Gujarat Urja Vikas Nigam Ltd
Vs. Essar Power Ltd, (2008 4 SCC 755; date of judgment: 13/03/2008) observed
and held (per Markandey Katju, J.), inter alia, as follows (in para 9, 28,
33 and 60 ) :
“9. Mr. K.K. Venugopal, learned senior counsel for the appellant,
has
relied on Section 174 of the Electricity Act, 2003 (hereinafter in short
‘the
Act of 2003’) which states :
Section 174. Act to have overriding effect :
Save as otherwise provided in section 173, the provisions of this Act shall
have effect notwithstanding anything inconsistent therewith contained in any
other law for the time being in force or in any instrument having effect by
virtue of any law other than this Act.
28 Section 86(1)(f) of the Act of 2003 is a special
provision and hence will override the general provision in Section 11 of the
Arbitration and Conciliation Act, 1996 for
arbitration of disputes between the licensee and generating companies. It
is well settled that the special law overrides the general law. Hence, in
our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no
application to the question who can adjudicate/arbitrate disputes between
licensees and generating companies, and only Section 86(1)(f) shall apply in
such a situation.
33. Section 174 provides that the Electricity Act, 2003 will
prevail over anything inconsistent in any other law. In our opinion the
inconsistency may be express or implied. Since Section 86(1)(f) is a
special provision for adjudicating disputes between licensees and generating
companies, in our opinion by implication Section 11 of the Arbitration and
Conciliation Act, 1996 will not apply to such disputes i.e. disputes between
licensees and generating companies. This is because of the principle that
the special law overrides the general law. For adjudication of disputes
between the licensees and generating companies there is a special law namely
86(1)(f) of the Electricity Act, 2003. Hence the general law in Section 11
of the Arbitration and Conciliation Act, 1996 will not apply to such
disputes.
60. We make it clear that it is only with regard to the authority
which can adjudicate or arbitrate disputes that the Electricity Act, 2003
will prevail over Section 11 of the Arbitration and Conciliation Act, 1996.
However, as regards, the procedure to be followed by the State Commission
(or the arbitrator nominated by it) and other matters related to arbitration
(other than appointment of the arbitrator) the Arbitration and Conciliation
Act, 1996 will apply (except if there is a conflicting provision in the Act
of 2003). In
other words, Section 86(1)(f) is only restricted to the authority which is
to adjudicate or arbitrate between licensees and generating companies.
Procedural and other matters relating to such proceedings will of course be
governed by Arbitration and Conciliation Act, 1996, unless there is a
conflicting provision in the Act of 2003.” (emphasis supplied)
3. It
is respectfully submitted that by drawing analogy from the ratio decidendi
of various earlier judgments of Hon’ble Supreme Court, it may be safely
concluded that the special legislation Securitisation
Act, 2002 is to prevail over the
provisions of the earlier special legislation SICA, 1985 for the following
reasons:
3.1 Hon’ble
Supreme Court in Mardia Chemicals Ltd. & Ors. Vs. U.O.I. & Ors. (A.I.R 2004
SC 2371 / (2004) 4 SCC 311) while upholding the constitutional validity of
the Securitisation Act, 2002
(‘the Act’) and its provisions
except that of sub-section (2) of Section 17 of the Act, which is declared
ultra vires of Article 14 of the Constitution of India, has observed and
held, inter alia, as follows (in para 26):
“………….the Act was enacted to curb the menace of growing non-performing
assets (‘NPAs’). It affects the banks and financial institutions which is
ultimately against the public interest. Due to non-recovery of the dues the
banks also run out of the financial resources to further carry on the
financial activity and to meet the need and requirement of its other
depositors and clients. The figures of NPA which have been given border
around one lac crores. After coming into force of the Recovery of Debts due
to Banks and Financial Institutions Act and establishment of Debt Recovery
Tribunals the success in recovery has not been very encouraging. Therefore,
need was felt for a faster procedure empowering the secured creditors to
recover their dues and for securitisation of financial assets so as to
generate maximum monetary liquidity. It has been felt that after coming into
force of the Act there is a marked difference in realization of dues and
more borrowers are coming forward to pay up the defaulted amount and clear
the dues……………….”
3.2 Section
37 of the Securitisation Act, 2002 provides that the application of certain
other laws, named therein, not barred. However, it is significant to note
here that the name of SICA, 1985 has been specifically omitted by the
legislature.
3.3 Further,
Section 41 of the Securitisation Act, 2002 provides that the enactments
specified in the Schedule shall be amended in the manner specified therein.
It is pertinent to note here that in section 15 of the SICA, 1985, in
sub-section (1), after the proviso, two additional provisos have been
inserted. The later relevant proviso reads as follows:
“Provided also that on or after the commencement of the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002, where a reference is pending before the Board for Industrial and
Financial Reconstruction, such reference shall abate if the secured
creditors, representing not less than three-fourth in value of the amount
outstanding against financial assistance disbursed to the borrower of such
secured creditors, have taken any measures to recover their secured debt
under sub-section (4) of section 13 of that Act.” (emphasis supplied)
3.4 Therefore, as soon as the secured creditor(s) shall take any
measures under sub-section (4) of section 13 of the Securitisation Act,
2002 to recover their secured debt, the reference made by the borrower, if
any, which is pending before the Board for Industrial and Financial
Reconstruction (‘BIFR’), such reference shall abate. Consequently,
thereafter the provisions of the SICA, 1985 would not be applicable at all
to the case of that borrower.
Conclusion
4. In the given case on April 7, 2007 SBI had sent a notice u/s 13 (4)
of the Securitisation Act, 2002 for possession of the property of the
company. In view of that, immediately on receipt of notice by the company
the reference made by the company pending before BIFR has already abated.
Consequently, the provisions of the SICA, 1985 would not be applicable at
all to the case of that company. It is respectfully submitted that as a
result, the question, whether or not the provisions of the SICA, 1985 will
prevail over the Securitisation Act, 2002, does not survive for
consideration.
DRT Solutions
Weekly Mail – 87th Issue
dated 1st January ‘10
A very Happy &
Prosperous
New Year
to You
& to Your Dear
Ones
All Weekly mails right from 1st Issue
to latest, click links below:-
1-10 11-20 21-30 31-40 41-50 51-60 61-70 71-80 81-Latest
(1) ‘RENDERING JUDGMENTS –
SOME BASICS’
Courtesy and Thanks to Advocate Yashpal
Rathore, we happen to know a MOST important article titled ‘Rendering
Judgments – some Basics’ vide (2009) 10 SCC (J) which must be read,
assimilated and used by all the litigants in DRTs. This article is written
by Justice R.V. Raveendran, sitting Judge in Supreme Court of India.
(2) One of the Most Important SC Judgments:-
The above article of Justice Raveendran cites many useful SC
Judgments but we found the following judgment which, if we use, is destined
to change not only DRT Litigations but the whole Indian Judicial System:-
‘S.P. Gupta vs Union of India’, equivalent citations :- 1982
AIR(SC) 149 : 1981 Legal Eagle 497 : 1981 (4) Scale 1974 : 1981 (Supp.1) SCC
87 : 1982 (2) SCR 365
Justice Raveendran writes as under:-
‘The old British concept that a Judge is
a neutral passive umpire has undergone a perceptible change in ‘S.P. Gupta
vs Union of India’ Bhagwati, J. (as he then was) found the
British approach was not suited to Indian conditions and attempted to define
the role of a judge thus: (extract from the above judgment)
’27 - - - Now this approach to the judicial function may be alright
for a stable and static society but not for a society pulsating with urges
of gender justice, worker justice, minorities justice, dalit justice and
equal justice, between chronic unequals. Where the contest is between those
who are socially or economically unequal, the judicial process may prove
disastrous from the point of view of social justice, if the Judge adopts a
merely passive or negative role and does not adopt a positive and creative
approach. The judiciary cannot remain a mere bystander or spectator but it
must become an active participant in the judicial process ready to use law
in the service of social justice through a proactive goal-oriented approach.
But this cannot be achieved unless we have judicial cadres who share the
fighting faith of the Constitution and who are imbued with the
constitutional values. The necessity of a judiciary which is in tune with
the social philosophy of the Constitution has nowhere been better emphasized
than in the words of Justice Krishna Iyer which we quote: APPOINTMENT of
Judges is a serious process where judicial expertise, legal learning, life's
experience and high integrity are components, but above all are two
indispensables - social philosophy in active unison with the socialistic
articles of the Constitution, and second, but equally important, built-in
resistance to pushes and pressures by class interests, private prejudices,
government threats and blandishments, party loyalties and contrary economic
and political ideologies projecting into pronouncements.
Justice Krishna lyer goes on to say in his inimitable style :
JUSTICE Cardozo
approvingly quoted President Theodore Roosevelt's stress on the social
philosophy of the Judges, which shakes and shapes the course of a nation
and, therefore, the choice of Judges for the higher Courts which makes and
declares the law of the land, must be in tune with the social philosophy of
the Constitution. Not mastery of the law alone, but social vision and
creative craftsmanship are important inputs in successful justicing.
What is necessary is to have Judges who are prepared to fashion new
tools, forge new methods, innovate new strategies and evolve a new
jurisprudence, who are judicial
statesmen with a social vision and a creative faculty and who have, above
all, a deep sense of commitment to the Constitution with an activist
approach and obligation for accountability, not to any party in power nor to
the opposition nor to the classes which are vociferous but to the half-
hungry millions of India who are continually denied their basic human
rights. We need Judges who are alive to the socio-economic realities of
Indian life, who are anxious to wipe every tear from every eye, who have
faith in the constitutional values and who are ready to use law as an
instrument for achieving the constitutional objectives.
DRT Solutions Weekly Mail – 86th Issue dated
25th December ’09
(1) Right to file reply to the OA Dismissal Application closed:-
One of our clients from
Hyderabad facing recovery action in DRT Delhi filed an application at our
instance. Since the reply was not submitted by the financial institution,
the PO DRT Delhi allowed 7 days time, failing which the right to file reply
will be automatically closed. Since on 21st instt. the reply was
not filed, the right to file reply was closed and the next date has been
fixed as 15.02.10 for arguments on the said OA Dismissal Application.
We have advised the client
to file the counter-claim on the said date of 15.02.10. This with a view to
safeguard the situation that if the OA is dismissed, the counter-claim can
not be filed. On the other hand, if the counter-claim is filed before
dismissal of the OA, the said counter-claim will continue even if the OA is
dismissed subsequently.
(2)
Huge amount of counter-claims prepared by us are questioned by some of our
clients and or visitors to our web site:-
Many of our clients and
visitors of our web site wonder over the huge amount of counter-claim
prepared by us. On this topic recently we have sent a reply mail to one of
clients reproduced below:-
“(1) Please find below extract reproduced from
Pg. 141 of Vol I 6th Edition (2008) of 'Treatise on Law of Damages &
Compensation' by C. Kameshwar Rao - Publisher 'Law Publishers (India) Pvt
Ltd., Allahabad:-
"There is no particular limit to the amount of
damages that can be awarded by a Court of law, and in proper cases the
amount may rise to almost any sum of money - - -."
(2) The cited judgment is "Jugal Kishor Marwari
vs Babu Homeshwar Singh, AIR 1922 Patna 79 at pg 84 (where a sum of Rs. 2
lac was awarded)
(3) Rs. 2 lac
of 1922 will become Rs. 1000 crores today.
(4) Court of law does not distinguish between the
parties. Mr. Gopalakrishnan, an ex-Chairman of a Indian Bank was awarded
jail term of 7 years and fine of Rs. 80 lacs. Even Mrs. Indira Gandhi, ex-
PM was arrested. You may read my weekly mail 82nd issue which gives a SC
Judgment on the attitude of Govt and statutory authorities (like banks)
towards litigation. Time is not far when all the misdeeds committed by banks
will come to light and huge damages will be awarded.”
DRT Solutions Weekly Mail – 85th Issue dated
18th December ’09
(1) Useful Judgment of Supreme Court and its implication and application:-
In the judgment of Supreme
Court (given below just after our comments), a very useful law has been laid
downs vide extract from para no. 14 reproduced as under:-
14. In this connection we would
like to say that there is a presumption in law that a Judge deals with all
the points which have been pressed before him. It often happens that in a
petition or appeal several points are taken in the memorandum of the
petition or appeal, but at the time of arguments only some of these points
are pressed. Naturally a Judge will deal only with the points which are
pressed before him in the arguments and it will be presumed that the
appellant gave up the other points, otherwise he would have dealt with them
also. If a point is not mentioned in the judgment of a Court, the
presumption is that that point was never pressed before the learned Judge
and it was given up. However, that is a rebuttable presumption. In case the
petitioner contends that he had pressed that point also (which has not been
dealt with in the impugned judgment), it is open to him to file an
application before the same learned Judge (or Bench) which delivered the
impugned judgment, and if he satisfies the Judge (or Bench) that the other
points were in fact pressed, but were not dealt with in the impugned
judgment, it is open to the concerned Court to pass appropriate orders,
including an order of review. However, it is not ordinarily open to the
party to file an appeal and seek to argue a point which even if taken in the
petition or memorandum filed before the Court below, has not been dealt with
in the judgment of the Court below. The party who has this grievance must
approach the same Court which passed the judgment, and urge that the other
points were pressed but not dealt with.
Our Comments:-
(1)
All the
important and material points must be specifically pressed before the Judge
during the Oral Arguments.
(2)
The judge is
required to deal with all those points with reasons in his judgment and
order.
(3)
If any of the
points has not been dealt with, we must submit an application under Sec. 151
of CPC or a Review Petition giving reference to this Supreme Court ruling
requesting him to issue additional judgment and order.
(4)
The above
process must continue till all the points have been covered fully.
(5)
The only
lacuna with the present system is that there is no record of the oral
arguments and hence it becomes very difficult to point out the deficiency.
We propose to make audio record of the oral arguments and submit a CD
containing the said oral arguments as well as transcript of the same.
This is the practice in US Court Rooms. Even the Supreme Court is going to
commence such recording.
(6)
Initially
there may be problems and lot of efforts may be needed to introduce the
above but there is no option.
IN THE SUPREME COURT OF INDIA
Equivalent
Citations: 2007 AIOL 1255 : 2007 Legal Eagle 1255 : 2007 (14) Scale 30 :
2008 (2) SCC 95 : 2007 (12) SCR 901
Judges :
A.K.Mathur : Markandey Katju
Mohd. Akram Ansari
Versus
Chief Election Officer & Ors.
Case No. :
Civil Appeal No. 4981 of 2006 with Civil Appeal No. 5828 of 2006
Date of
Decision : 04-Dec-2007
Advocates
Appeared:
Balraj Dewan :
Zafar Sadique : Goodwill Indeever : L.C.Goyal : Meenakshi Arora : Mohd.Akram
Ansari : Mohd.Shahid : Mohd.Shajid : Naved Yar Khan
HEADNOTE :
Wakf Act, 1995
-- Section 31-A -- (Delhi Amendment Act of 2006) -- Prevention of
disqualification for membership of Legislative Assembly of National Capital
Territory of Delhi -- Office of profit -- Offices of the Chairperson or
Members of the Board constituted for Union Territory of Delhi shall not be
disqualified and shall be deemed never to have been disqualified for being
chosen as, or for being, a member of the Legislative Assembly of National
Capital Territory of Delhi -- It is true that the Amendment Act 2006 does
not specifically state that it is retrospective. However, the use of the
words “and shall be deemed never to have been disqualified” in the above
provision makes it clear that it is retrospective -- Appeals dismissed.
STATUTES
REFERRED:
1. Wakf
Act,1995, S.31-A
CASES
REFERRED:
1. Bhavnagar University v.
Palitana Sugar Mill (P) Ltd., 2003(2) SCC 111 [Para 8]
2. East End Dwelling Co. Ltd.
v. Finsbury Borough Council, (1951) 2 All ER 587 [Para 7]
3. Raja Shatrunjit (dead) by
Lrs. v. Mohammad Azmat Azim Khan and others, AIR 1971 SC 1474 [Para 8]
JUDGMENT/ORDER:
JUDGMENT
1. Heard learned counsel for
the parties including the appellant appearing in person in C.A. No.
5828/2006. The appellant in C.A. No. 5828/2006 is also respondent No. 6 in
C.A. No. 4981/2006.
2. C.A. No. 4981/2006 is
directed against the judgment and order dated 22.8.2006 passed by a learned
Single Judge of the Delhi High Court in Election Petition No. 2/2004. C.A.
No. 5828/2006 is directed against the judgment and order dated 22.8.2006
passed by the same learned Single Judge of the High Court in Election
Petition No. 3/2004. The appellant in C.A. No. 5828/2006 (who was petitioner
in Election Petition No. 3/2004) has stated before the High Court that
Election Petitions No. 2 and 3 of 2004 were almost identical and hence no
evidence was recorded in Election Petition No. 3/2004.
3. The facts of the case are
that the appellant contested the election to the Delhi Legislative Assembly
in 2003 but lost. The respondent Haroon Yusuf was declared elected. At the
time of the election Haroon Yusuf was also the Chairman of the Delhi Waqf
Board.
4. The question involved in
both these appeals is whether the office of Chairperson or Members of the
Walf Board is an office of profit so as to disqualify a person from being
elected as a member of the Legislative Assembly of NCT of Delhi. It may be
noted here that an amendment has been brought about in the Wakf Act, 1995 by
way of The Wakf (Delhi Amendment) Act, 2006 (Delhi Act 3 of 2006) by
inserting Section 31A in the 1995 Act. Section 31A of the Wakf Act, 1995 as
amended by The Wakf (Delhi Amendment) Act, 2006 reads as under:-
“31A. Prevention of
disqualification for membership of Legislative Assembly of National Capital
Territory of Delhi. It is hereby declared that the offices of the
Chairperson or Members of the Board constituted for Union Territory of Delhi
shall not be disqualified and shall be deemed never to have been
disqualified for being chosen as, or for being, a member of the Legislative
Assembly of National Capital Territory of Delhi.”
5. The appellant, appearing in
person, submitted that the aforesaid Section 31A came into force only in
2006, whereas the election was held in 2003, and the election petition was
filed on 13.1.2004. He submitted that Section 31A is not retrospective and
hence will have no application to elections held before 2006. We do not
agree.
6. It is true that the
Amendment Act 2006 does not specifically state that it is retrospective.
However, the use of the words “and shall be deemed never to have been
disqualified” in the above provision makes it clear that it is
retrospective.
7. The words “and shall be
deemed never to have been disqualified” in Section 31A creates a legal
fiction. Legal fictions are well-known in law. In the oft-quoted passage of
Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council,
(1951) 2 All ER 587 it was observed:
“If you are bidden to treat an
imaginary state of affairs as real, you must surely, unless prohibited from
doing so, also imagine as real the consequence and incidents which, if the
putative state of affairs had in fact existed, must inevitably have flowed
from or accompanied it. The statute says that you must imagine a certain
state of affairs; it does not say that having done so, you must cause or
permit your imagination to boggle when it comes to the inevitable
corollaries of that state of affairs”.
8. The aforesaid observation
has been approved and followed by our own Supreme Court in a series of
decisions e.g. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. 2003(2)
SCC 111 (para 33), Raja Shatrunjit (dead) by Lrs v. Mohammad Azmat Azim Khan
and others AIR 1971 SC 1474 etc.
9. Hence, even if the elected
candidate was disqualified in the year 2003, he has to be deemed not to have
been disqualified in view of Section 31-A which was inserted in the year
2006.
10. In view of the above it is
not necessary for us to go into the question as to whether de hors Section
31A the office of Chairperson of the Wakf Board can be said to be an office
of profit. The aforesaid question has become academic now after the
insertion of Section 31A.
11. The appellant then
submitted that apart from the point that the elected candidate Haroon Yusuf
was holding an office of profit, the appellant had also raised a large
number of other points in the election petition, including the allegation of
corrupt practice by Haroon Yusuf, but these have not been dealt with by the
High Court. He submitted that the High Court should have dealt with all the
points mentioned in the election petition.
12. We have carefully gone
through the impugned judgment of the High Court and we find that the only
point discussed therein is the point whether Haroof Yusuf was disqualified
because he was holding an office of profit. No other point has been
discussed in the aforesaid judgment.
13. The appellant submitted
that he had taken a large number of points in his election petition, but
they have wrongly not been discussed in the impugned judgment.
14. In this connection we would
like to say that there is a presumption in law that a Judge deals with all
the points which have been pressed before him. It often happens that in a
petition or appeal several points are taken in the memorandum of the
petition or appeal, but at the time of arguments only some of these points
are pressed. Naturally a Judge will deal only with the points which are
pressed before him in the arguments and it will be presumed that the
appellant gave up the other points, otherwise he would have dealt with them
also. If a point is not mentioned in the judgment of a Court, the
presumption is that that point was never pressed before the learned Judge
and it was given up. However, that is a rebuttable presumption. In case the
petitioner contends that he had pressed that point also (which has not been
dealt with in the impugned judgment), it is open to him to file an
application before the same learned Judge (or Bench) which delivered the
impugned judgment, and if he satisfies the Judge (or Bench) that the other
points were in fact pressed, but were not dealt with in the impugned
judgment, it is open to the concerned Court to pass appropriate orders,
including an order of review. However, it is not ordinarily open to the
party to file an appeal and seek to argue a point which even if taken in the
petition or memorandum filed before the Court below, has not been dealt with
in the judgment of the Court below. The party who has this grievance must
approach the same Court which passed the judgment, and urge that the other
points were pressed but not dealt with.
15. Since no other point except
the point of office of profit has been dealt with in the impugned judgment
of the High Court, the presumption is that no other point was pressed before
the High Court, even though the point may have been contained in the
election petition. Hence we do not allow these points to be raised here.
16. With the observations made
above, the appeals are dismissed. No costs.
(2) Chief Justice of India says India needs 35,000 lower courts in place of
present 14,000 courts. He further says that on account of delays, people
could ‘Revolt’
Bangalore, Dec 12 (IANS) Chief Justice K.G. Balakrishnan said Saturday that
the number of lower courts in the country should be 35,000 as against the
present 14,000 so as to cut down delays in disposal of cases.
The legal system could crumble if the backlog of
cases continued for long, he said at the inauguration of a meet on
'Alternative Dispute Resolution - Conciliation and Mediation' here.
It was organised by International Centre for
Alternative Dispute Resolution, an autonomous body functioning under the
central law ministry.
There was also urgent need to fill up vacancies in judiciary,
Balakrishnan said.
Apprehending that people could 'revolt' against
continuing delays in justice delivery, Balakrishnan, however, said that
people still had faith in judiciary -- that they would get justice sooner or
later.
But 'how long can they wait,' he asked.
Our Comments
We created world class
constitution and adopted it in 1950. Since we did not take any action to
create world class courts, world class advocates and world class judges, it
sowed the seeds of
discontent and hence revolution. The following are the clear signals:-
(1)
Farmers and borrowers are
committing suicides.
(2)
Brides are being burnt,
ladies are being molested and culprits are scot free.
(3)
Corruption is at the peak.
More than 30% Judges are corrupt. 90% of the lower staff in Judiciary is
corrupt. The same Judiciary which decides corruption cases is unable to
control corruption under its nose.
(4)
Chappals are thrown at the
Judges of Supreme Court.
(5)
Judges are being beaten in
open courts.
(6)
Bar Associations are
boycotting the Judges.
(7)
Competent
litigants are demanding Recording of the Oral Arguments and submitting the
same by way of documents in form of CD and Transcript. They are further
demanding complete trials, Hence the courts are getting flooded with massive
documents and records by these litigants.
Simply increasing the
number of courts is no solution. It is just like increasing the bullock
carts, the speed of transportation will not increase. You need modern
vehicles like trucks and planes. Similarly in Judiciary you need modern
management and technology. The experience and methodology in developed
countries is available but we did not bother since 1950 and still we are not
serious. The results will be:-
(1)
Helpless litigants have no
option but to run away or commit suicides.
(2)
Litigants having financial
muscle to buy the judicial officers by corrupt means.
(3)
Litigants with mind and
financial power to fight endless battle which will result in tremendous
pressure on Judiciary till leading judgments are achieved. Such judgments
will be greatly useful for others.
(4)
The present process is
highly painful. It is like a destructive solution.
(5)
Sensible process should be
based on modern management and technology which will be like constructive
solution.
DRT Solutions Weekly Mail – 84th Issue dated
11th December ’09
(1) Counter-claim in Securitisation Act:-
We have received several
queries as to how to set up counter-claim in actions under Securitization Act. Our
views are as under:-
(1)
Counter-claim is a legal defence available to the defendant
in a suit.
(2)
The specific provision of counter-claim was made in CPC in
1976 even though counter-claims were setup prior to 1976.
(3)
Similarly specific provision of counter-claim was made in DRT
Act in 2000 even though counter-claims were setup prior to 2000.
(4)
No such specific provision of counter-claim exists in
Securitization Act. Hence the existing state is similar to that prior to
1976 in CPC or prior to 2000 in DRT Act.
(5)
The Supreme Court in the matter of Mardia Chemicals has laid
down the law that the Appeal under Sec. 17 of the Securitization Act is akin
to a civil suit.
(6)
If you apply these facts and principles to Securitization
Act, you should claim loss and damages in the Appeal under Sec. 17 of the
Act.
(7)
We have already introduced the above in few cases. In fact we
incorporated the said loss and damages in the Representation and Objections
under Sec. 3-A of the Act.
(8)
The above loss and damages should not be confused with the
compensation stipulated under Sec. 19 of the Act which is to be awarded only
when the possession is not in accordance with the Act.
(2) WS need not be filed till the application for OA Dismissal is decided,
however Counter-claim may be filed.
A peculiar situation has
arisen in the DRT case pertaining to one of our clients at Mumbai. The
matter relating to application for OA Dismissal is under adjudication with
DRT, DRAT and High Court. The WS has not been filed on the plea that if the
OA itself is dismissed, there will no need of the WS. In the meantime the
counter-claim has been filed. The bank has been asked to submit WS of the
said counter-claim.
Filing of the counter-claim
is a safe guard for the situation when the OA is dismissed, one can not file
the counter-claim but if counter-claim is filed and then OA is dismissed the
counter-claim will continue.
DRT Solutions Weekly Mail – 83rd Issue dated
4th December ’09
(1) Supreme Court criticizes Govt. & public sector bodies for unnecessary
litigations against public instead of admitting mistakes and settling the
matter. Banks are also doing the same thing:-
In the
following important judgment, the Supreme Court has criticized the legal
officials of Govt. and public sector bodies, who indulge in unnecessary
litigations even upto the highest court of the country. They are fighting
against the public using the money of the public.
2009 STPL(Web) 177 SC
SUPREME COURT OF INDIA
(R. V. RAVEENDRAN & G. S.
SINGHVI, JJ.)
URBAN
IMPROVEMENT TRUST, BIKANER
Petitioner
VERSUS
MOHAN LAL
Respondent
Special Leave Petition (C) 29852 of 2009 (CC
No.11768)-Decided on 30-10-2009.
Consumer –
Housing – Road laid on allotted plot
ORDER
R. V.
Raveendran, J.-The
petitioner before us is the Bikaner Urban Improvement Trust. It allotted
a Plot (A-303) measuring 450 sq.ft. under its Karni Nagar Scheme to the
respondent in the year 1991. Respondent paid the allotment price (lease
premium) of Rs.3,443/- in 1992 and took possession in 1997. In the year
1998, the petitioner-Trust allotted to respondents and delivered possession
of the adjacent strip measuring 150 ft.
2. Thereafter, the Trust without notice to the
respondent and without resorting to any acquisition proceedings, laid a
road in the said plot. The layout map prepared and made available by the
Trust in the year 2002 did not show the existence of Plot A-303 or its
adjoining strip. Feeling aggrieved, the respondent met the officers of the
Trust and complained to them. He also gave a written complaint seeking
restoration of the plot. As there was no response, he approached the
District Consumer Forum in 2005, praying for restoration of the plot or for
allotment of an alternative site and award of damages of Rs.200,000/-.
The District Forum disposed of the complaint directing refund of the
allotment price paid with interest at 9% per annum. The State Commission
allowed the appeal filed by the respondent and directed allotment of an
alternative plot and also awarded Rs.5,000/- as compensation. The
National Commission dismissed the revision petition filed by the petitioner
Trust. Special leave is sought to challenge the said order of the National
Commission.
3. The Trust does not dispute any of the facts. It has
no explanation to offer for its negligence or highhanded action of taking
over the allotted plot without notice, acquisition, or consent.
Nevertheless, the Trust challenges the relief granted, on three technical
grounds:
(i) As the respondent was negligent in protecting his
possession and did not protest or complain when the Trust laid the road in
his plot, he is not entitled to any relief.
(ii) The action of the Trust, even if it was an illegal
encroachment, did not amount to `deficiency in service' and therefore the
respondent could not invoke the jurisdiction of the forum under the Consumer
Protection Act, 1986.
(iii) The complaint was barred by limitation as it was
filed beyond two years from the occurrence of the cause of action, and the
respondent did not show sufficient cause for condonation of delay.
These contentions have been rejected. The decision of
the State Commission rejecting the above contentions is just and reasonable.
The National Commission was justified in not interfering with the said
decision. We are satisfied that no case is made out to grant special
leave under Article 136 of the Constitution.
4. It is a matter of concern that such frivolous and
unjust litigation by governments and statutory authorities are on the
increase. Statutory Authorities exist to discharge statutory functions in
public interest. They should be responsible litigants. They cannot raise
frivolous and unjust objections, nor act in a callous and highhanded manner.
They can not behave like some private litigants with profiteering motives.
Nor can they resort to unjust enrichment. They are expected to show remorse
or regret when their officers act negligently or in an overbearing manner.
When glaring wrong acts by their officers is brought to their notice, for
which there is no explanation or excuse, the least that is expected is
restitution/restoration to the extent possible with appropriate
compensation. Their harsh attitude in regard to genuine grievances of the
public and their indulgence in unwarranted litigation requires to be
corrected.
5. This Court has repeatedly expressed the view that
the governments and statutory authorities should be model or ideal litigants
and should not put forth false, frivolous, vexatious, technical (but unjust)
contentions to obstruct the path of justice. We may refer to some of the
decisions in this behalf.
5.1. In Dilbagh Rai Jarry vs. Union of India [1973
(3) SCC 554] where this Court extracted with approval, the following
statement (from an earlier decision of the Kerala High Court):
"The State, under our Constitution, undertakes economic
activities in a vast and widening public sector and inevitably gets involved
in disputes with private individuals. But it must be remembered that the
State is no ordinary party trying to win a case against one of its own
citizens by hook or by crook; for the State's interest is to meet honest
claims, vindicate a substantial defence and never to score a technical point
or overreach a weaker party to avoid a just liability or secure an unfair
advantage, simply because legal devices provide such an opportunity. The
State is a virtuous litigant and looks with unconcern on immoral forensic
successes so that if on the merits the case is weak, government shows a
willingness to settle the dispute regardless of prestige and other lesser
motivations which move private parties to fight in court. The lay-out on
litigation costs and executive time by the State and its agencies is so
staggering these days because of the large amount of litigation in which it
is involved that a positive and wholesome policy of cutting back on the
volume of law suits by the twin methods of not being tempted into forensic
show-downs where a reasonable adjustment is feasible and ever offering to
extinguish a pending proceeding on just terms, giving the legal mentors of
government some initiative and authority in this behalf. I am not indulging
in any judicial homily but only echoing the dynamic national policy on State
litigation evolved at a Conference of Law Ministers of India way back in
1957.
5.2. In Madras Port Trust v. Hymanshu International
by its Proprietor v. Venkatadri (Dead) by L.Rs. [(1979) 4 SCC 176] held:
"2... It is high time that governments and public
authorities adopt the practice of not relying upon technical pleas for the
purpose of defeating legitimate claims of citizens and do what is fair and
just to the citizens. Of course, if a government or a public authority takes
up a technical plea, the Court has to decide it and if the plea is well
founded, it has to be upheld by the court, but what we feel is that such a
plea should not ordinarily be taken up by a government or a public
authority, unless of course the claim is not well-founded and by reason of
delay in filing it, the evidence for the purpose of resisting such a claim
has become unavailable...."
5.3. In a three Judge Bench judgment of Bhag Singh &
Ors. v. Union Territory of Chandigarh through LAC, Chandigarh [(1985) 3 SCC
737]:
"3... The State Government must do what is fair and
just to the citizen and should not, as far as possible, except in cases
where tax or revenue is received or recovered without protest or where the
State Government would otherwise be irretrievably be prejudiced, take up a
technical plea to defeat the legitimate and just claim of the citizen."
6. Unwarranted litigation by governments and statutory
authorities basically stem from the two general baseless assumptions by
their officers. They are:
(i) All claims against the government/statutory
authorities should be viewed as illegal and should be resisted and fought up
to the highest court of the land.
(ii) If taking a decision on an issue could be avoided,
then it is prudent not to decide the issue and let the aggrieved party
approach the Court and secures a decision.
The reluctance
to take decisions, or tendency to challenge all orders against them, is not
the policy of the governments or statutory authorities, but is attributable
to some officers who are responsible for taking decisions and/or officers in
charge of litigation.
Their
reluctance arises from an instinctive tendency to protect themselves against
any future accusations of wrong decision making, or worse, of improper
motives for any decision making. Unless their insecurity and fear is
addressed, officers will continue to pass on the responsibility of decision
making to courts and Tribunals. The Central Government is now attempting to
deal with this issue by formulating realistic and practical norms for
defending cases filed against the government and for filing appeals and
revisions against adverse decisions, thereby, eliminating unnecessary
litigation. But, it is not sufficient if the Central Government alone
undertakes such an exercise. The State Governments and the statutory
authorities, who have more litigations than the Central Government, should
also make genuine efforts to eliminate unnecessary litigation. Vexatious and
unnecessary litigation have been clogging the wheels of justice, for too
long making it difficult for courts and Tribunals to provide easy and speedy
access to justice to bona fide and needy litigants.
7. In this case, what is granted by the State
Commission is the minimum relief in the facts and circumstances, that is to
direct allotment of an alternative plot with a nominal compensation of
Rs.5000/- But instead of remedying the wrong, by complying with the decision
of the Consumer fora, the Improvement Trust is trying to brazen out its
illegal act by contending that the allottee should have been protested when
it illegally laid the road in his plot. It has persisted with its
unreasonable and unjust stand by indulging in unnecessary litigation by
approaching the National Commission and then this Court. The Trust should
sensitise its officers to serve the public rather than justify their
dictatorial acts. It should avoid such an unnecessary litigation.
8. Delay condoned. The special leave petition is
dismissed.
Our Comments
(1) On
one hand, the Govt is not enhancing the strength of the judges, it is
loading the judicial system being the biggest litigant with more than 70%
share.
(2) The
bureaucracy of the Govt. is inherently against the judicial supremacy and it
continues to ape the British Legacy resulting into biggest hurdle in
ushering in the Rule of Law in place of Rule by Persons. Now it is fight of
Public vs Public Servants. The above ruling of the Supreme Court has
confirmed the same .
(3) On
account of the said attitude of the bureaucracy in banks, we have been
advising to use the only and ultimate tool of effective defence i.e. damages
or counter-claim. It is well known that on account of bureaucratic attitude
as illustrated by the Supreme Court, such litigations will take long time
needing adequate resources and hence we advise our clients to have
sustained earnings otherwise such battle can not be fought .
(4) As
emphasized the most important part of the bank litigations is the pleadings
& trial in DRT. Both require sufficient knowledge and experience. We are not
against the young DRT lawyers but they lack the required experience and
knowledge. That is the reason why we have been emphasizing empowerment of
the litigants and employment of senior trial lawyers. It is all the more
important on account of the attitude of the bank bureaucracy as illustrated
by the observations of the Supreme Court in the above judgment .
DRT Solutions Weekly Mail – 82nd Issue dated
27th November ’09
(1) Supreme Court on attitude of Govt. and statutory authorities like
Bankers towards litigation:-
(A) The Supreme Court vide citation 1974
AIR(SC) 130
Dilbagh Rai Jarry vs Union of India, decided on 05.11.73 described the
attitude of Govt. and statutory authorities like bankers as under:-
“KRISHNA IYER, J.:—
25. - - - - - I feel impelled to make a few observations not on the
merits but on governmental disposition to litigation, the present case being
symptomatic of a serious deficiency. In this country the State is the
largest litigant to-day and the huge expenditure involved makes a big draft
on the public exchequer. In the context of expanding dimensions of State
activity and responsibility, is it unfair to expect finer sense and
sensibility in its litigation policy, the absence of which, in the present
case, has led the Railway callously and cantankerously to resist an action
by its own employee a small man, by urging a mere technical plea which has
been pursued right up to the summit court here and has been negatived in the
judgment just pronounced. Instances of this type are legion as is evidenced
by the fact that the Law Commission of India in a recent report* (54th
) on amendments to the Civil Procedure Code has suggested the deletion
of S. 80, finding that wholesome provision hardly ever utilized by
Government, and has gone further to provide a special procedure for
government litigation to highlight the need for an activist policy of just
settlement of claims where the State is a party. It is not right for a
welfare State like ours to be Janus-faced, and while formulating the
humanist project of legal aid to the poor, contest the claims of poor
employees under it pleading limitation and the like. That the tendency is
chronic flows from certain observations I had made in a Kerala High Court
decision, P. P. Abubacker v. Union of India, AIR 1972 Ker 103, 107: para 5
which I may usefully excerpt here:
"The State, under our Constitution, undertakes economic activities in a
vast and widening public sector and inevitably gets involved in disputes
with private individuals. But it must be remembered that the State is no
ordinary party trying to win a case against one of its own citizens by hook
or by crook; for, the State's interest is to meet honest claims, vindicate a
substantial defence and never to score a technical point or overreach a
weaker party to avoid a just liability or secure an unfair advantage, simply
because legal devices provide such an opportunity. The State is a virtuous
litigant and looks with unconcern on immoral forensic successes so that if
on the merits the case is weak, government shows a willingness to settle the
dispute regardless of prestige and other lesser motivations which move
private parties to fight in court. The lay-out on litigation costs and
executive time by the State and its agencies is so staggering these days
because of the large amount of litigation in which it is involved that a
positive and wholesome policy of cutting back on the volume of law suits by
the twin methods of not being tempted into forensic show-down where a
reasonable adjustment is feasible and ever offering to extinguish a pending
proceeding on just terms, giving the legal mentors of government some
initiative and authority in this behalf. I am not indulging in any judicial
homily but only echoing the dynamic national policy on State litigation
evolved at a Conference of Law Ministers of India way back in 1957. This
second appeal strikes me as an instance of disregard of that policy."
26. All these words from the Bench, hopefully addressed to a responsive
Government, may, if seasonable reactions follow, go a long way to avoidance
of governmental litigiousness and affirmance of the image of the State as
deeply concerned only in justice - Social Justice. The pyrrhic victory of
the poor appellant in this case is a sad justification for the above
observations.”
(B) The Supreme Court in another case vide citation
1979 AIR(SC)
1144 Madras Port Trust vs Hymanshu International decided on 03.01.79 echoed
similar observations as under:-
“BHAGVATI, J.:—
“2. We do not think that this is a fit case where we should proceed to
determine whether the claim of the respondent was barred by S. 110 of the
Madras Port Trust Act (II of 1905). The plea of limitation based on this
section is one which the court always looks upon with disfavor and it is
unfortunate that a public authority like the Port Trust should, in all
morality and justice, take up such a plea to defeat a just claim of the
citizen. It is high time that governments and public authorities adopt the
practice of not relying upon technical pleas for the purpose of defeating
legitimate claims of citizens and do what is fair and just to the citizens.
Of course, if a government or a public authority takes up a technical plea,
the Court has to decide it and if the plea is well-founded, it has to be
upheld by the Court, but what we feel is that such a plea should not
ordinarily be taken up by a government or a public authority, unless of
course the claim is not well founded and by reason of delay in filing it,
the evidence for the purpose of resisting such a claim has become
unavailable. Here, it is obvious that the claim of the respondent was a just
claim supported as it was by the recommendation of the Assistant Collector
of Customs and hence in the exercise of our discretion under Art. 136 of the
Constitution, we do not see any reason why we should proceed to hear this
appeal and adjudicate upon the plea of the appellant based on S. 110 of the
Madras Port Trust Act (II of 1905)”
(C) Two more judgments have been delivered by the Supreme Court
during the week prior to 18th instt. where the Supreme Court has
severely criticized the Govt. and statutory authorities like banks towards
litigation. As soon as we locate the said judgments, we shall cover the same
in our weekly mails.
(2) Globally we are No. 1 in Ranking of our web site for ‘DRT’, ‘DRT related
phrases’ and even ‘Weekly Mails’ in all major search engines:-
We are glad to announce that globally we are No. 1 in ranking of
our web site for ‘DRT’, ‘DRT related phrases’ in all major search engines
like Google and Yahoo. Even ‘Weekly Mails’ is No. 1 in Yahoo. The following
are the search results as on 26.11.09 :-
(A)
Yahoo – drtsolutions.com No 1 in 1,45,00,000 results for DRT.
(B)
Google - drtsolutions.com No 1 in 7,41,000 results for DRT .
(C)
Yahoo - drtsolutions.com No 1 in 7,32,00,000 results for Weekly Mails .
(D)
In these search engines, if you search phrases like DRT Cases, DRT
Advocates, DRT Counter-claim etc., drtsolutions.com is No. 1 .
On account of such No 1
ranking, we have huge response from and interactions with borrowers and
guarantors, as a result of which our high ranking is continuously
maintained.
It is interesting to note that the word DRT has several meanings
few of which are :-
(1) Diploma In
Robotics Training, (2) Digital Receiver Technology, (3) Digital Reality
Trust,
(4) Durham Region Transit, (5) Diamond Racing Team, (5) Daughters of
Republic of Texas, (6) Desert Rose Temari, (7) Demand Responsive Transport,
(8) Discourse Representation Theory, (9) Dona Remedios Trinidad, (10) Do the
Right Thing, (11) Development Research & Training, (12) Driving Resolution
Together, (13) Deviation Ratio Topography, (14) Del Rio TX, (15) Diamond
Racing Team, (16) Dynamic Research Technologies, (17) Derives Resiniques et
Terpeniques, (18) Dispute Resolution Hotline, (19) Document Related
Technologies, (20) Disaster Response Team, (21) Dead Right There etc. These
bodies have got their web sites well designed and are in existence for
several years. Despite all these we occupy the highest ranking as may be
seen from above results.
DRT Solutions Weekly Mail – 81st Issue dated
20th November ’09
(1) Indore High Court Bar Association decides that the members will not
appear before Justice Sapre and demanded his transfer from Indore:-
In the General Body meeting held on 18th Nov. ’09, the
Indore Bar Association decided that the members will not appear before
Justice Sapre and demanded his transfer from Indore. This was on account of
rough and rude behaviour of Justice Sapre. Copy of the resolution was sent
to Chief Justice, Supreme Court of India, High Court Jabalpur as well as the
Govt.
Our Comments:-
(1) The Judges are under
heavy pressure to dispose off the cases quickly. There are disposal norms.
On one hand our globally best Constitution has laid down highest norms for
awarding justice which requires sufficient time, the said disposal norms do
not provide any time for thorough study. Thus the Judges are caught in a
very difficult situation.
(2) The statutory
authorities like banks with their massive legal machinery are able to get
Special Courts like DRTs and special conditional legislation like DRT Act
and Securititsation Act which mention time limit of 6 months for complete
adjudication of a complicated civil suit involving complex matters of
banking, industry and finance, which in civil courts with existing system of
working requires 15 to 20 years.
(3) If you desire to aim at
achieving a job needing 20 years to be done in 6 months, either it will not
be done or it will be of rejected quality. The first victim will be the
borrower litigant. If such litigant can survive and fight, the next victim
will be the Judge.
(4) On account of above
ground realities, there are instances of public outbursts such as throwing
of chappals in Supreme Court, beating of judge by the advocates in open
court in UP, strike by the advocates in DRT Jabalpur, pressure situation
created in DRT Madurai and Bangalore and now virtual boycotting of High
Court Judge in High Court Indore.
(5) The litigant discontent
is so much that weakest borrowers like farmers are committing suicide.
(6) In the name of Judicial
System, we have not done anything except formulating the Constitution, an
activity requiring reading, writing and discussions leading to world best
constitution. Such Constitution requires world best courts, world best
advocates and world best Judges for which we have not done anything. As a
result there is going to be virtual blood bath in the courts.
(7) Swaran Lata (AIR 1969
Supreme Court 1167) had a serious warning signal but nobody paid any serious
attention to the same even till today.
(8) Eminent Justice Krishna
Iyer wrote in 1988 that we are 200 years behind but no body bothers to
initiate any worthwhile efforts till today.
(9) The only silver lining
is that by creating the special courts like DRTs and by pressurizing the
competent litigants like businessmen and industrial entrepreneurs, the whole
system is going to get such a jolt which will compel a long overdue massive
surgery. The pains will be intense but there are no options.
(10) We advise the
competent litigants to stand like a rock at every stage of litigation so
that no injustice is tolerated and the case is not allowed to proceed till
the said element of injustice is removed. The tools are trials as per the
law and procedure of law like reviews, change in courts, cross-examination
etc. All these will require lot of time. Hence these are to be backed by
counter-claim or damage suit so that cost of time delay is safeguarded by
the element of interest. One should not move to higher courts till justice
is achieved in trial courts. No compromise or no sparing of anyone who
breaches law and procedure of law.
(11) The fight is
difficult, long drawn and expensive but those who can do will bring some
leading judgments which will benefit all others.
(2) Supreme Court criticizes anti-public attitudes of the law deptts of
Govt. and Statutory Authorities (like Banks):-
Mr. M.J. Antony of ‘Business Standard vide his article published in
the 18th Nov. issue has voiced the ground realities vide extract
as under:-
“It is well known that the government is the largest litigant
in the courts. It is less known that it starves the judiciary of funds. It
is even less known that it chokes the courts with unnecessary suits. The
last one frequently invites drubbing from the Supreme Court.
Two judgments delivered last week analyse the psychology of bureaucrats
in the legal departments. They follow the following guidelines, according to
the apex court:
·
All claims against the government/statutory authorities
should be viewed as illegal and be resisted and fought up to the highest
court of the land.
· If taking a decision on an
issue could be avoided, it is prudent not to decide the issue and let the
aggrieved party approach the court and secure a decision.
Though these seem like Murphy’s law or Catch-22, we must
accept them as they come from the highest court of the land. The two
judgments amply prove how the government takes “frivolous and unjust” causes
up to the apex court, no matter whether it wins or loses.
Our Comments:-
In the above
article, Mr. Antony has made a reference to even earlier Supreme Court
Judgments viz. 1973, in the Dilbagh Rai vs Union of India case and 1979
Madras Port Trust vs Hymanshu International. We shall study
these judgments and cover the same in future weekly mails.
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