COLLEGIUM CONTROVERSY AND CONSTITUENT ASSEMBLY REPORT : WITHOUT PREJUDICE ANALYSIS
Is NJAC a violation of Article 368 or violates the theory of pith and substance? To understand we must go back to the root of the matter. Brief History This issue is neither constitutional nor legal. The issue is to decide the procedure for appointment of Judges in High Courts namely the High Court and Supreme Court. As such the debate on the procedure to appoint judges to higher courts was debated forcefully by several leading giant members of the Constituent Assembly. But no consensus was drawn. The details we shall see here are below. But before that somewhere in the year 1991 by order and Judgement of the Supreme Court, a system was designed by the name Collegium. In Collegium 6-8 Judges would consider candidates for the office of the higher court judges which includes the Chief Justice of State and Supreme Court Collegium members. Who selects the candidates and forwards the names to the Law Ministry for scanning intelligence background. There is no other role of the Government in the selection process. The President in the course gives his assent and notifies. Is this a correct system that was dreamt by the makers of our Constitution? Or is hit by pith and substance? Link to read Judgement : https://indiankanoon.org/doc/753224/ Current scenario and the allegations: Over a period of time, this system was allegedly affected by nepotism and it is alleged that it has created a monopoly. There were news reports as well as reports of a senior lawyer at the bar that 50% of the Judges are relatives of the ex-Judges. In the meantime, the Government enacted a law called National Judicial Appointments Commission Act, 2014 ( NJAC ) which was abrogated and declared ultra-vires by the Supreme Court. This resulted in the continuity of the Collegium System. In its logical and practical argument that the Judiciary, it’s argued that the participation of politicians in the selection process may vitiate the independence of the judiciary. This danger was also visualized by the late Dr. B.R. Ambedkar. For the said reason though amendments were moved to adopt the American method of appointment of judges to the higher courts same were withdrawn by respective Constituent Assembly members. However, the late Dr. Ambedkar could not have thought of the situation persisting today about the collegium system which has allegedly resulted in the monopoly of a few families. Here is the link: https://timesofindia.indiatimes.com/india/govt-gives-collegium-proof-of-nepotism-in-picks-for-hc-judges/articleshow/65220425.cms https://www.hindustantimes.com/india/50-hc-judges-related-to-senior-judicial-members-report/story-S8RP2Ir9cEuIN4NewFnvML.html With this background let us see the history of this issue and why it did not reach finality during the finalization of the Constitution of India. The Government of India Act, 1919 provided in Section 101 for the Constitution of High Courts; and the appointment of the Chief Justice and the permanent Judges were in the absolute discretion of the Crown, subject only to the prescribed conditions of eligibility. The tenure of their office, according to Section 102, was dependent entirely on the Crown’s pleasure. Under the Government of India, Act, 1935, appointments of Judges of the Federal Court and the High Courts were at the absolute discretion of the Crown or, in other words, […]
Read moreCAN A COPARCENER/CO-OWNER SELL HIS/HER SHARE IN A JOINTLY OWNED PROPERTY TO A THIRD PARTY? RIGHT OF PREEMPTION AGRICULTURE LAND VS RESIDENTIAL PROPERTY
Let us first see the provisions of the Transfer of Property Act 1882 and the Hindu Succession Act 1956. Section 22 of The Hindu Succession Act 1956 Section 22 of the Act is as under:- “22. Preferential right to acquire property in certain cases – (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.- In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.” OBITER Smt. Laxmi Debi v. Surendra Kumar Panda and Others by the High Court of Orissa. In this case the submission that Section 22 of the Act would not cover succession in respect of agricultural lands was rejected.It was observed and held that “It is clear that the Parliament had omitted the phrase “save as regards agricultural land” from item No. 5 of the Concurrent List in order to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the enlargement of Entry No. 5. We have no doubt, therefore, that in view of the change in law, the Act will apply to agricultural lands also, and the decision in AIR 1941 FC 72 (K) would no longer hold good.” The High Court of Judicature at Allahabad, in Smt. Prema Devi vs. Joint Director of Consolidation (Headquarter) at Gorakhpur Camp and Ors. held:- In List 2, Entry No. 18 is as follows:– “Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.” This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures […]
Read moreWHAT IS THE PRINCIPLE OF OWELTY ? WHEN DO THE COURTS APPLY IT IN THE CASE OF CO-OWNED PROPERTY?
When is a property jointly owned and cannot be partitioned by metes and bounds what remedy is available to parties? In the case of a property that is jointly held by the family, or which may be inherited by the family which consists of more than one sibling of the deceased how to partition the property? One alternative is division by metes and bounds. This can be done by parties under a registered agreement by executing a Deed of Partition or if there is more than one property then it can be done by executing a Deed of Family Arrangement and followed by executing a Deed of Conveyance or the document which is needed in the matter applicable to the facts and circumstances of the case. It could be of the nature of a Deed of Release, Deed of Relinquishment, Deed of Gift, or Deed of Exchange as the case may be. The same should be done by way of a registered deed. Now when in the following events : for example, a bungalow is jointly owned by the respective families of four brothers who passed away. The legal heirs of three brothers want to sell their undivided share in the property. But one branch of the deceased brother is objecting to the sale; another example, a bungalow cannot be divided or partitioned by metes and bounds because the legal heirs are more, and the area is less; the objecting party does not reside in the said inherited property; In such a case land is locked so even the generation of income from the same. What to do in such a case? In such cases, courts apply the principle of Owelty: what it is? OWELTY : In regard to partitions, the ground upon which the jurisdiction of courts of equity, was maintainable as it constituted a part of its appropriate and peculiar remedial justice. It is, that courts of equity were not restrained, as, courts of law were, to a mere, partition or allotment of the lands and ‘other real estate between the parties according to their respective interests in the same, and having regard to the true value thereof; but courts of equity might, with a view to the more-, convenient and perfect, partition or allotment of the premises, decree a pecuniary compensation to one of the parties for owelty or, equality of partition, so as to prevent an injustice or avoidable inequality.” ‘Lawrence -on Equity Jurisprudenoe (1929), Vol. I pp. 1227, 1228, s. 1147, also contains the following passage:- , The ordinary method of partition is to decree a physical severance of the separate interests, no sale being authorised unless a fair, partition is otherwise impossible, or at least prejudicial. There was no power of judicial sale at common law. The Court ordering physical partition may make its decree effective by compelling mutual conveyances by the parties of their respective interests. Owelty of partition may be awarded to equalize the shares of the parties and may be decreed to be a lien on the excessive allotment. Though only when necessary to a fair partition, and it should be […]
Read morePREVAILING LAW RELATING TO THE TRANSFER AND TRANSMISSION OF SHARES ON THE DEATH OF A MEMBER SHORTCOMINGS
This blog comes in wake of a judgment I came across of the Bombay High Court in the matter of Karan Vishnu Khandelwal Omdham Cooperative Housing Society Ltd. Vs Deputy Registrar -K-West In this matter facts of the case were as under: Mannalal Surajmal Khandelwal (deceased) was owner of a flat no.1 and by virtue thereof, was entitled to share certificate. The deceased during his lifetime registered a nomination in the name of Petitioner- his grandson. The nomination was acknowledged by the managing committee of the society in it’s meeting held on and made an entry in the nomination register. Mr. Mannalal Khandelwal died intestate on 20thJanuary, 2011, leaving behind, Rajendra Mannalal Khandelwal (Son- Respondent No.2); Krishnakumar Mannalal Khandelwal (Son); and Petitioner- son of Vishnu Mannalal Khandelwal (predeceased son of deceased). That upon demise of Mannalal Surajmal Khandelwal, Respondent No.2 – Rajendra M. Khandelwal, made an application to the society, inter alia, seeking transfer of membership and the share certificate in his name. Along with the application, he submitted a No Objection cum Declaration’ and indemnity bond made and executed by Krishnakumar Mannalal Khandelwal. This way, the Respondent No.2 claimed 2/3rdshare and interest in the flat and sought transfer of proportionate interest in flat and claimed membership. The application was rejected by the society on 8thAugust, 2018. Whereafter, the Respondent No.2 preferred an appeal under section 23 (2) of the Maharashtra Societies Act (‘MCS Act’ for short), being Appeal No. 09 of 2019 before the Deputy Registrar. The Petitioner sought intervention in the said appeal. The Intervention was allowed. The Deputy Registrar vide order dated 8thFebruary, 2021 allowed the appeal and held that since the Respondent No.2 has acquired 2/3rdright in flat No.1, to that extent, his interest be noted in the society record. In consequence, the Deputy Registrar acknowledged 2/3rdundivided right of the Respondent No.2 and 1/3rdundivided right of the Petitioner in flat No.1 and directed to make entries in the society records. In revision, the Divisional Joint Registrar upheld the order of the Deputy Registrar and dismissed the revision application of the Petitioner. Feeling aggrieved by that order, the Petitioner has filed this petition. MATTER BEFORE BOMBAY HIGH COURT WHEN ERROR OF LAW OCCURRED The matter when came up before the Bombay High Court, the court observed that Registrar passed the impugned order in haste may be at the behest of respondent No.2. Therefore, the impugned order not only suffers from gross irregularity being passed in breach of principles of natural justice but also against the law, and therefore, deserves to be quashed and set aside. While passing the Judgement Bombay High Court relied upon Indrani Wahi Vs. Registrar of Co-operative Societies (Civil Appeal 4930/2006), held that the cooperative society was bound by nomination made by the deceased and it was bound to transfer the shares to the nominee While passing the Judgment Hon’ble Court it relied upon the provisions of Section 154-B(2) of Maharashtra Cooperative Societies (Amendment) Act, 2019. In any event, by. It reads under: “154-13. On the death of a Member of a society, the society shall transfer share, right, title and interest in […]
Read moreMAHARASHTRA CO-OPERATIVE SOCIETY ACT LACUNAE ABUSE OF POWER AN ANALYSIS AND SUGGESTIONS
“Nearly all men can stand adversity, but if you want to test a men’s character, give him power.” Said Abraham Lincoln This aptly applies to the Managing Committee of a society. Once the power comes neighbor becomes your Master. There are many incidents where the committee manipulates bills and contracts, and even in redevelopment cases three honorary office bearers Secretary, Chairman, and Treasurer have weightage in the finalization of the deal. We see litigations and stalling of projects of a housing society. Human tendency is such that they think of self-gain, instead of taking care and executing responsibilities that they have taken with utmost care and truthfulness. Corrupt minds see financial benefits in every deal. They forget that while doing this they prejudice the property and interests of other flat members. Election: 1 With the new election rules, an election is held similarly to the way in which how elections are held in any Assembly and Parliament. Cartel is formed and elections are won. It has killed the neighborhood’s love, respect, and honor. One family and one flat provision are also violated royally. Even if distant relatives or cousins have a cartel. This creates a monopoly in management. Suggestion: Like Multi Co-operative society, provide that same member or any other joint member from one flat cannot contest the consecutive election. The flat owners/member must take a break or drop out from the next election to give an opportunity to other flat owners/members. So, after serving for 5 years the said member/flat owner cannot contest election for immediate subsequent another term. This will reduce the monopoly of a few flat owners and their families, and their friends. For the convenience of the readers and lawmakers reproduced below is the provision of the Multi-State Cooperative Societies Act,2002 below which restricts reelection after two terms. Prohibition to hold the office of chairperson or president or vice chairperson or vice president in certain cases (1) No member of a board shall be eligible to be elected as the chairperson or president or vice-chairperson or vice-president of a multi-state cooperative society if such member is a Minister in the Central Government or a State Government. (2) No member of a board shall be eligible to be elected as the chairperson or president of a multi-state cooperative society, after he has held the office as such during two consecutive terms, whether full or part: Provided that a member who has ceased to hold the office of the chairperson or president continuously for one full term shall again be eligible for election to the office as such. Explanation:- where any member holding the office of the chairperson or president at the commencement of this Act is against elected to that office after such commencement, he shall for the purpose of this section, be deemed to have held office for one term before such election. Proposed Suggestion : A similar principle must be applied to the housing society. A.2 A Managing Committee was disqualified for 5 years, and an administrator was appointed. Managing Committee manages to suppress the facts from members of the society and manages that the […]
Read moreCAN SOCIETY REFUSE TO TRANSFER A FLAT ON AN UNREGISTERED AGREEMENT?
CAUTIONARY The Committee of Society should not use the law for harassment but for betterment. We have a question before us. Let us analyze There was a leading case of Kalpita Enclave vs Kiran Builders. This was under Section 7 of the Maharashtra Ownership Flats Act,1963. In this case, two flat purchasers had filed suit under Section 7 of said MOFA, which was objected by the builders. Subsequently, MOFA Section 4 was amended and 4A was inserted. 1[4A Where an agreement for sale entered into under sub-section (1) of Effect of section 4, whether entered into before or after the commencement of the Maharashtra Ownership Flats (Regulation of the promotion of construction, registration sale, Management and transfer) (Amendment and Validating Provisions) Act 1983, remains unregistered for any reason, then notwithstanding anything required to contained in any law for the time being in force, or in any judgment, decree be or order of any Court, it may be received as evidence of a contract in a suit registered for specific performance under Chapter II of the Specific Relief Act, 1963, or of as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral 1882. transaction not required to be affected by registered instrument.]. Subsequently, Maharashtra Textile and Co-operation Ministry came out with a Circular dated 16th October 1991 not to effect transfer by the Society till Stamp Duty and Registration charges are paid. However the unregistered document is not invalid and can be received in evidence as per Section 4A of the MOFA Act,1963. The market value concept came into force on 1st January 1986 and all documents prior thereto are out of the purview of the market value. Concluding Remarks: In current times society is bound to transfer flat upon payment of stamp duty and registration charges. But old documents are out of the scope of the valuation. Documents which are executed up to 31st December 1985 are not liable for market value. Even documents prior to 1986 and subsequent which is unregistered are not invalidated by their non-registration. SHRUTI DESAI 7th September,2022
Read moreCAN THE COURT RESTRAIN THE ELECTION COMMISSION TO DISCHARGE ITS CONSTITUTIONAL DUTIES WHEN THE HEARING OF THE MATTER IS NOT OVER? DOES IT AMOUNT TO ENCROACHMENT IN THE TERRITORY OF AN INDEPENDENT CONSTITUTIONAL BODY? MAHARASHTRA SHIV SENA SPLIT AND CONSTITUTIONAL BENCH
“Of course, inasmuch as the power of altering every feature of the Constitution remains elsewhere politically, the Constitution is neither the ultimate ‘‘political’’ sovereign nor a legally unalterable and absolute sovereign. All constitutional and ‘‘legal’’ sovereigns are necessarily restrained and limited sovereigns. I thought and still think that such a working theory should be acceptable to lawyers, particularly as the dignitaries of State, including Judges of superior Courts, and all the legislators, who have to take oaths prescribed by the Third Schedule of our Constitution, swear ‘‘allegiance’’ to the Constitution as though the documents itself is a personal Ruler. This accords with our own ancient notions of the law as ‘‘The King of Kings’’ and the majesty of all that it stands for: The Rightfulness of the Ends as well as of the means.” Kesvananda Bharti’s case (AIR 1973 SC 1461) The Supreme Court on Tuesday referred to a Constitution Bench the petitions filed by the rival groups of Shiv Sena in relation to the political development in State of Maharashtra. This is Breaking News today. Several questions are before Supreme Court which will now constitute five Judges Bench. I will not touch the same. But can Court by its order restrain any constitutional independent body from discharging its function under the constitution for which it is constituted? First, let us see relevant provisions. Part XV of the Constitution provides for elections. Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution 1*** shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the […]
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