#constitutionofindia Archives

2 May

Supreme Court Affirms Land Ownership Rights Bihar Land Dispute Case, Rejects State Claim

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Case Title – Ram Balak Singh Vs. State of Bihar & Anr. 2024 INSC 360

Case Number – 1627 of 2016

Dated on – 1^st May, 2024

Quorum – Justice Pankaj Mithal

FACTS OF THE CASE

In the case of Ram Balak Singh Vs. State of Bihar & Anr. 2024 INSC 360, the Appellant, Ram Balak, instituted a suit for possession and confirmation of the possession over 0.32 decimal of land in the Village of Kishanpur, Bihar. Initially, the land belonged to Rambit Kuwer, who through a lease deed in 1341 fasli settled it in favour of Makhan Singh. Until his death, Makhan Singh continued in possession of the land, subsequently his adopted son, Ram Balak Singh, inherited the said land. During the process of consolidation under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, the name of Ram Balak, the adopted son of Makhan Singh was recorded as the owner of the said land by the Consolidation officer. However, thereafter, the State Authorities claimed whole of the land, inclusive of the suit land, as pond land and intervened with the possession of the Appellant. The Appellant instituted a suit against the State of Bihar and another party seeking the declaration of his title over the land and the confirmation of his possession. The trial court ruled the suit in favour of the Appellant, but the decision of the court was reversed by the First Appellate Court and asserted by the High Court. The Appellant in this case, appealed to the Supreme Court challenging the decision of the Appellate Court.

CONTENTIONS OF THE APPELLANT

The Appellant, through their counsel, in the said case contented that he and his predecessor-in-interest have been in possession of the land since it was resolved in their favour.
The Appellant, through their counsel, in the said case contented that the Consolidation Officer had acknowledged his rights over the land and directed his name to be recorded in the records of rights, which should be final and conclusive.
The Appellant, through their counsel, in the said case contented that the Appellate Courts erred in revising the decree of the Trial Court, as he had furnished sufficient evidence to establish his rights and possession over the land.

CONTENTIONS OF THE RESPONDENT

The Respondent, through their counsel, in the said case contented that the whole of the land was pond land and could not be settled in favour of the Appellant.
The Respondent, through their counsel, in the said case contented that the suit was not maintainable under Section 37 of the Consolidation Act, 1956, which bars the civil matters falling under the Jurisdiction of the Consolidation Court.

LEGAL PROVISIONS

Section 10(B) of the Consolidation Act, 1956 prescribes the decision of matters relating to charges and transactions affecting rights or interest recorded in revised records
Section 37 of the Consolidation Act, 1956 prescribes the Bar of Jurisdiction of Civil Courts
Order VIII Rule 10 of the Code of Civil Procedure, 1908 prescribes the procedure when party fails to present written statement called for by court
Article 32 of the Constitution of India prescribes the Right to constitutional remedies for the enforcement of the fundamental rights of an aggrieved citizen
Article 226 of the Constitution of India prescribes the power of the High Courts to issue certain writs
Article 227 of the Constitution of India prescribes the power of Superintendence over all courts by the High Court

ISSUES

The main issue of the case revolved around whether the order of the Consolidation Officer acknowledging the title of the Appellant over the land can be ignored or reversed by the Civil Court?
Whether the suit instituted by the Appellant is barred under Section 37 of the Consolidation Act, 1956?

COURT ANALYSIS AND JUDGMENT

The court in the case of Ram Balak Singh Vs. State of Bihar & Anr. 2024 INSC 360, analysed the provisions of the Consolidation Act, 1956, which bars the jurisdiction of the Civil Courts in the matters related to land consolidation. The court, in this present case, observed that the order of the Consolidation Officer recognizing the rights of the Appellant over the land had attained finality and could not be ignored or reversed by the Civil Court. The Court, in this present case, held that the suit instituted by the Appellant was not challenging any decision of the Consolidation Court but seeking the recognition of his rights over the land. Thus, the court concluded that the suit instituted by the Appellant was not barred under Section 37 of the Consolidation Act,1956. The court allowed the appeal of the Appellant, set aside the judgments of the Appellate Courts and restored the decree of the Trial Court in favour of the Appellant.

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Judgement Reviewed by – Sruti Sikha Maharana

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30 Jan

Oral Notification Unnecessary When Detenu is Furnished with Grounds of Detention in a Familiar Language: Supreme Court

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Case Title: Sarfaraz Alam v. Union of India & Ors.

Case No: SLP(Crl) No. 13193 of 2023

Decided on: 4^th January, 2024

CORAM: THE HON’BLE MR. JUSTICE M.M. SUNDRESH AND HON’BLE MR. JUSTICE ARAVIIND KUMAR

Facts of the Case

In the current case, the individual in question was apprehended based on information about a shipment containing gold and foreign currencies. Despite being initially arrested and securing bail, a detention order was later issued under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Following the issuance of the order, the individual was detained. When he refused to acknowledge the grounds of detention, a detailed record (panchnama) was created in the presence of two impartial witnesses. Interestingly, the detenu signed the document in English with the statement “I have refused to receive any document.”

The court inferred from this that the detenu’s claim of ignorance of English appeared to be an afterthought. It also noted that an attempt to provide him with a translated version of the grounds was made on the very next day of his detention. Due to these observations, the Bench denied the requested relief, emphasizing that the individual had approached the court with unclean hands and had withheld essential facts.

Issue

The central issue in this case revolves around whether the detenu/appellant was effectively informed by the authorities, in a language he comprehended, regarding the grounds of detention and his right to make a representation, leading to the challenge of the detention order.

Legal Provision

Article 22(5) of the Constitution of India states that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Court’s analysis and decision

In the course of rejecting a challenge to detention on the basis of the detenu/appellant not being informed of his rights by the authorities, the Supreme Court declared that if a detenu receives the grounds of detention in a language he understands, containing a clear statement about his right to make a representation, there is no necessity for additional verbal communication.

Discussing Article 22(5) of the Constitution of India, a Division Bench comprising Justices MM Sundresh and Aravind Kumar emphasized that it is imperative to inform a detenu of the grounds of detention (along with relevant documents) promptly and in a language he comprehends. Additionally, the detenu must be made aware of his right to challenge the detention order by making a representation.

The Bench concluded that the grounds of detention, forming the basis for the satisfaction of the detaining authority, were effectively communicated to the detenu. The document contained “adequate averments” indicating the right to make a representation to the specified authorities. As the detenu had read the grounds and relevant documents, the Bench asserted that he was well-informed about his right to submit a representation.

Written by- Afshan Ahmad

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16 Jan

Census record is sufficient to prove scheduled tribe to certify them belonging to the community : Bombay HC

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TITLE : Omkar v The state of Maharashtra

CORAM : Hon’ble Justice Ravindra v Ghuge

DATE : 15^th January 2024

CITATION : WP No. 13567 Of 2021

FACTS

It was claimed by the petitioner that they belong to a particular tribe called as Thakar Scheduled Tribe, which was invalidated by the scheduled tribes certifying authority. It was argued that the collector has approved the petitioners in belonging in the community. The same was forwarded to the Scheduled Tribes certifying scrutiny authority. It was contended that the procedure adopted by the Committee is contrary to Rule 12(7)(8) of the Maharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012. The vigilance committee also approved the petitioners as belonging to the caste.

LAWS INVOLVED

The scheme under Rule 12, particularly, sub-clause (7) and (8) would depict that once the vigilance cell report is favourable, the Committee shall normally rely upon the same and issue validity certificates.

ISSUES

Whether the petitioner belong to the thakar community?

JUDGEMENT

The court observed the evidence provided by the petitioners which were national census including the relatives as ‘Thakar’ caste. Records also figured school certificates of the cousin and grandfather of the petitioners to declare them as belonging to the thakar community.

The court held that the petitioners have proved themselves to be belonging to the thakar community through census record.

Written by- Sanjana Ravichandran

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9 Jan

Supreme court slams Gujarat HC on having no jurisdiction to issue remission against the offenders of Bilkis Bano case : The accused(s) sent back to jail.

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TITLE : Bilkis Yakub Rasool V Union of India & Ors

CITATION : WP (CRL.) No. 491 of 2022

CORAM : Hon’ble justice Nagarathna

DECIDED ON : 8^th January 2024

INTRODUCTION :

The Bilkis Bano judgement by the Supreme Court on 8^th January 2024 sends the acquitted criminals back to jail for the charges of rape and murder which took place during the 2008 Gujarat riots. In the preface of the judgment, it is quoted that a woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Such powerful statement by the court is backed by the question of Can heinous crimes committed against women permit remission of the convicts by granting them a reduction of their sentences?

FACTS :

The accused of this current matter was released early by virtue of remission in 2022 who were guilty of committing heinous crimes during the Gujarat Riots of 2002. The crime came out of a communal vengeance against the victim who was brutally gang raped by the respondents. Further, the mother of Bilkis Yakub Rassol was gang raped and murder, including the cousin of the petitioner who at that time had just given birth. Along with that, eight other minors were murdered from the same family by the respondents. Furthermore, the petitioner’s three year old daughter and her brothers and sisters were also murdered by the accused.

Eventually, the perpetrators of the crime were convicted and sentenced. However, the petitioner had approached the hon’ble supreme court once again in challenging the remission granted to the respondents despite their commission of such heinous crimes.

The respondents were convicted for the offences punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC for the murder of fourteen people; Section 376 (2)(e) & (g) for having committed gang-rape on the petitioner-victim; Section 376(2)(g) for having committed gang rape on other women.

One of the respondents after undergoing 14 years and 5 months in his sentence, filed an application to the Gujarat High Court challenging the not considering his application for premature release under Section 433 and 433A of CrPC and moved the case to the State of Maharashtra for premature release. The investigating officers, such as the CBI and police officers held in negative and stated that there should be no leniency given to the respondent and he must serve his full sentence.

The respondent then again approached the HC of Gujarat in a criminal application seeking remission under Section 432 and 433 of CrPC. Furthermore, The Department of Home Affairs, Government of Gujarat, addressed a letter to the Secretary, Ministry of Home Affairs, Government of India, seeking sanction from the Government of India on the proposal for the premature release of the prisoners.

Submissions by the State :

It was contended by the state that the PIL is not maintainable either by law or by facts, by claiming that a third party has no locus to challenge the orders of remission.
It was submitted that since the petitioners not being aggrieved persons have invoked the jurisdiction of this Court under Article 32 of the Constitution for extraneous purposes. As the petitioners are not the “persons aggrieved”, the writ petition is not maintainable.
It was argued that the remission under Section 432 of CrPC, the appropriate government for considering remission would be the state in which the offence was committed and not in which the trial was conducted, therefore the state of Gujarat should take cognizance.

Submissions by the Petitioner :

It was submitted that in the present case, the right of the victim and the cry of the society at large have been ignored by the State and Central Governments while recommending the grant of remission to all convicts in the case.
For the question on jurisdiction for remission, the petitioner argued that the investigation and trial took place in Maharashtra and hence it would be the appropriate government.

ISSUES

Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?
Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?
Whether the impugned orders of remission passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?
What Order?

ANALYSIS

Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?

The court in its judgement held that Article 32 of the Constitution is a part of fundamental rights. The court stated that the petitioner had filed the writ to enforce her fundamental rights under Article 21 which talks about right to life and personal liberty and Article 14 which deals with the right to equality and equal protection of law. The court stated that Article 32 is a constitutional remedy which can be used to enforce the goals enshrined in the preamble of the Constitution which speak of justice, liberty, equality and fraternity.

The court stated that :

“Bearing in mind the expanded notion of access to justice which also includes speedy remedy, we think that the petition filed by the petitioner in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed on the ground of availability of an alternative remedy under Article 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before this Court. “

Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?

The court held that with regards to the maintainability of the PILs in this case, one of the petitioners was Bilkis Bano herself who has filed through Article 32 Aswell, the petition itself would suffice for the maintainability of writ.

Therefore, it held that maintainability of PIL challenging the order of remission would not call for an answer as there is already a writ in the hand.

Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?

The court held that the state of Gujarat is not the appropriate government as per Section 432 of CrPC which gives the provision for granting remission. Section 432(7) defines appropriate government as the :

“(7) In this section and in section 433, the expression” appropriate Government” means,-

(a) in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.”

It was held that the state of Maharashtra would be the appropriate government as the sentence and trial took place there and stated that the remission orders have no legs to stand. It further stated that the government of Gujarat acted in jurisdictional error. It additionally held that the order of remission being vitiated and obtained by fraud and is therefore null and void.

Whether the impugned orders of remission passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?

The court gave the reasoning that the grant of remission is an exercise of discretion by the appropriate government. The test of discretion would be whether the authority concerned was acting within its powers. The power must not be in an arbitrary or perverse manner.

It held that there was a usurpation of power by the government of Gujarat. The assumption of power of State of Gujarat being the appropriate government is invalid and was set aside.

What order?

The court had to decide whether the released criminals must be sent back to prison since the remission order is quashed. The court relied on Article 21 of the constitution that no person shall be deprived of personal liberty except in accordance with the law.

The court stated that,

“Conversely, we think that a person is entitled to protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should rule of law prevail over personal liberty of a person or vice-versa?”

It stated that the justice should remain loyal to the rule of law and justice cannot be given without adherence to rule of law.

Therefore, the court held that for the respondents to seek remission, they have to be in prison again and they cannot seek remission when on bail or outside the jail. Therefore the plea of protection of liberty was not accepted by the court.

CONCLUSION :

The Supreme Court has held that rule of law prevails over personal liberty when the question arises to uphold justice. This case which quoted Plato for the concept for punishment as something to be inflicted, not for the sake of vengeance, for what is done cannot be undone, but for the sake of prevention and reformation has rightly interpreted the scope of justice to prevail and serve the victim’s suffering.

Written by- Sanjana Ravichandran

18 Dec

Education officer not in a higher pedestal than Administrative officers in the matters of promotion : Bombay HC

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TITLE : Sheshrao Namdev Bade v The state of Maharashtra

CORAM : Hon’ble justice Nitin Jamdar and Hon’ble Justice Manjusha Deshpande

DATE : 15^th December, 2023

CITATION : W.P No 13510 of 2023

FACTS

The petitioners are Education Officers who are aspiring for the post of Deputy Director of Education on the basis of seniority. According to them they fulfill the eligibility criteria required for the post as per Rule 3 of the Recruitment Rules of Deputy Director Of Education in Maharashtra Education Service, Group A Recruitment Rules,2018. This post has been amalgamated with the Act Administrative officers, Group A resolution through the powers of Article 309 of the Constitution. The petitioners challenge Rule 8 of the Recruitment Rules of Education Officer in the Maharashtra Education service, Group A as they fall under the category of Administrative Officer and Education Officers are appointed under Rule- 3 from the cadre of Deputy Education Officer. The Rule 8 of the Recruitment Rules, 2022 runs contrary to the Rule- 3 of the Recruitment Rules to the post of the Deputy Director of Education.

LAWS INVOLVED

Rule 8 of the Recruitment Rules of Education Officer in the Maharashtra Education service, Group A states that :

“8. Seniority of the person working on the post of Administrative Officer, Maharashtra Education Service, Group-A shall be fixed in the cadre of Education Officer and its equivalent posts as per their date of appointment by nomination or regular promotion on the post of Administrative Officer, on the date of publication of these Rules”

Seniority of a Government Employee is governed under Rule 3(1) of the MCS (Regulations and Seniority) Rules of 2021.

The said Rule provides that the seniority of a Government servant shall be determined from the length of his continuous service in the said cadre or post.

ISSUES

Whether The said Rule – 8 of Recruitment Rules, 2022 is violative of the right of the Petitioners?
Whether the Rule – 3 of the Recruitment Rules, 2022 is contrary to Rule – 8 of the said Rules?
Whether the said Rule – 8 is also contrary to Rule – 3 of the Recruitment Rules of Deputy Director of Maharashtra Education Services, Group – A (Administrative Branch)?

JUDGEMENT

The court held that the recruitment for Educational Officer through the 2016 rules is degree of in its statutory University and the promotion is done by Deputy Educational Officer with over 5 years of experience. The Recruitment rules for the post of Administrative officer is the qualification of defree in Art, Science, Commerce or Law.

The court held that the responsibilities of Education Officer and Administrative Officer are same. In furtherance, it also held that The State is empowered by virtue of proviso to Article 309 of the Constitution of India, to frame Recruitment Rules and to amend it from time to time. It stated that the contention of seniority of Administrative officer can only be counted during the amalgamation of the rules to be unacceptable. It would mean that the Administrative officer to have 5 more extra experience for a promotion.

The contention of Education officer being in a higher pedestal than Administrative officer were dismissed by the court as Education Officers are usually placed in the offices at District level as against that, the Administrative Officers are placed in the offices at State level or regional level.

The court stated that “The Education Officer is undoubtedly is an officer discharging Administrative functions. Therefore only on account of one of his functions being adjudicatory the post of Education Officer cannot be placed on higher pedestal then that of an Administrative Officer other things being equal.” And held that the policy decision to include Administrative officer in the cadre of education officer does not lose its independent identity.

Written by- Sanjana Ravichandran

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