sajikoduvath

State-Interference in Affairs of Societies & Clubs

Saji Koduvath, Advocate

Synopsis

1. Introduction
2. Article 19(1)(c) ‘Reasonable Restrictions’
3. Management and Vesting of Property of Societies, Separate
4. TN So. Regn. Act Provides for Compulsory Election
5. Co-op. Registrar’s Powers Supervisory in Nature
6. Art. 19 (1)(c) & Takeover – Considerations: Public interest
7. Board of Trustees, Ayurvedic & Unani Tibia College Vs. State
8. Take-Over: Enactment Struck Down
9. Parliament Cannot Infringe Constil. Rights: Damyanti’s Case
10. Damyanti’s Case Distinguished in Subsequent Cases
11. Authorities Required To Record Reasons
12. Take-Over: Bad, Where No Provision in the Acts Concerned
13. Co-operative Societies – Created by Statute
14. A Member Cannot Assail Statutory Interference:
15. Take-over and Appointment of Administrator
16. Take-over: Balance Between Institutional and Public Interest
17. Take Over: Management of Property, for a limited period
18. Admission of New Members: State Cannot Compel
19. Action of Legislature: If Violative of Article 14, Arbitrary
20. Formation of Assons. – Different From Running Business
21. Escheat

1. Introduction

Article 19(1)(c) of our Constitution guarantees freedom and right ‘to form associations or unions’. The right to ‘form’ association includes in itself the right for effective functioning of the association so as to enable it to achieve its lawful objectives. Article 19 lays down

Protection of certain rights regarding freedom of speech, etc. –
(1) All citizens shall have the right. –
- (a)…. (b) ….
- (c) to form associations or unions, co -operative societies;
- (d) … (e) … (f) … (g) . …
(2) ….
(3) …
(4) Nothing in Sub -clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.
(5) …
(6) ….”

2. Article 19(1)(c) ‘Reasonable Restrictions’

The right to form associations is not absolute. It is not incapable of regulation; because, it is subject to ‘reasonable restrictions’, which the State can impose, as laid down in clause (4) of Article 19.[1] In A. Umarani Vs. Registrar, Co-operative Societies[2] the Apex Court has observed that except playing supervisory role, the State has no administrative control over the day-to-day affairs of a co-operative society.

Following are the important Apex Court rulings on this point:

Thalappalam Ser. Coop. Bank Ltd Vs. State of Kerala.[3]
Dharam Dutt Vs. Union of India.[4]
SP Mittal V. Union of India.[5]
LN Mishra Institute of Economic Development Vs. State of Bihar.[6]
Daman Singh Vs. State of Punjab.[7]
Kamareddy Suryanarayana Vs. District Co-operative Officer[8]
All India Bank Employees’ case.[9]
The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi.[10]
State of Madras v. V.G. Row.[11]

3. Management and Vesting of Property of Societies[12], Separate

In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh[13] it is observed in para 27:

“If what is vested in the College Committee or its governing body is a right of management simpliciter, there is no question of the members of the society or the members of the governing body being beneficially interested in its property. It necessarily follows that by the fact of appointment of a treasurer, there can be no deprivation of the society of its rights in property. The consequence, which would flow on the appointment of a treasurer by the Government under the provisions of the Charitable Endowments Act, would be that he will take charge of the management of the properties held by the society. There is no divesting of the rights of the society in its properties. As already stated, what all the society is deprived of would be right of management which cannot be equated to any right in the property.”[14]

In Rev. Father Farcisus Mascarenhas Vs. The State of Bombay,[15] it was contended that the Roman Catholic Churches were governed by the canon law and that the provisions of the Bombay Public Trusts Act which mandated registration under the provisions of the Act contravened the fundamental rights of the Catholics; but, it was observed in the judgment that the provisions of the Bombay Act did not affect the fundamental rights of the Roman Catholics to hold property but they could only administer the property of the Church in conformity with law.

4. T.N. Societies Registration Act Provides for Compulsory Election

No Violation of ‘Fundamental Right to Form Association’

No Constitutional Guarantee – Without Interference by Law

Deviating from the (Central) So. Registration Act, 1860, T.N. Societies Registration Act, 1975, Sections 15(3) and 15(4) provide that the office of any member of the Committee cannot ensure beyond a period of three years and thereafter the election process has necessarily got to be adopted. S. 26(4) enables the Registrar to depute an officer to be present at the general meetings of the Institution and the Charitable Society.

In Periyar Self-respect Propaganda Institution, Trichy Vs. State of TN[16] the constitutional validity of these provisions were upheld observing the following:

“By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the Charitable Society arid certainly it cannot assume the colour of a fundamental right. ….. As rightly contended by the learned Advocate General appearing for the State, neither the Institution nor the Charitable Society, nor the present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had already formed, they must be allowed to continue to have that set up and any disturbance thereof would amount to violation of the right to form an association guaranteed under Art. 19(1)(c). If at all, such a right could be characterised as a peripheral or concomitant right which may facilitate the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every association formed shall effectively achieve its objectives without interference by law. This is not a case where the composition of the association is being altered. Neither the members nor the association of members could claim that they have a fundamental right to have office for life.”

5. Co-op. Registrar’s Powers Regulatory or Supervisory in Nature

Our Apex Court in Thalappalam Ser. Co-op. Bank Ltd. Vs. State of Kerala[17] observed as under:

“34. … Powers exercised by the Registrar of Co-operative Societies and others under the Co-operative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled.”[18]

6. Art. 19 (1)(c) & Takeover – Considerations: Public interest[19]

Within its sphere of activity, an association has the right of internal management. Nevertheless, if its functioning is deleterious to the interests of its members or the general public,[20] the association-right in the Constitution of India [Art. 19 (1)(c)] does not render the institution immune from take-over of management by the State or the executive agencies invoking the powers given in the statute concerned,[21] or by proper legislation.[22] The existence of the association-right, ipso facto, is no guarantee that if the functioning of the institution is not conducive to its objects, it would nevertheless be left alone.[23]

The Supreme Court, in LN Mishra Institute of Economic Development and Social Change, Patna Vs. State of Bihar,[24] upheld the Constitutional validity of an Ordinance (later replaced by an Act) under which an Institute (Lalit Narain Mishra Institute of Economic Development and Social Change, Patna – started by a Society with the same name) was taken over by the State Government ‘to ensure a high level of educational and training facilities and the co-ordination of the training with important industrial and business units’. The Ordinance had been challenged alleging mala fides, and on the ground of infraction of fundamental right to form an association under Article 19(1)(c). It is held:

“The fundamental right guaranteed under Art.19 (1)(c) does not extend to or embrace within it the objects or purposes or the activities of an association. In other words, it does not carry with it a further guarantee that the objects or purposes or activities of an association so formed shall not be interfered with by-law except on grounds as mentioned in Article 19 (4), viz., sovereignty and integrity of India or public order or morality.”

Our Apex Court, in Dharam Dutt Vs. Union of India,[25] summarised the finding in L.N. Mishra Institute as under:

“All assets and properties were vested in the State Government, and the Commissioner was deemed to have taken charge of the Institute. As all incidence of ownership and management were taken over by the State, what was left to the Society was paper ownership and management. Turning down the challenge, this Court held that the impugned Ordinance and the Act merely took over the Institute. Although, the name of the Society and of the Institute are the same, they were two different entities. The impugned legislations took over the Institute and not the Society. No restriction whatsoever was imposed on the functioning of the Society. The provisions of the Act referred to the Institute. The Institute constituted one of the activities of the Society. The petitioner-Society had constituted itself into an association in exercise of the fundamental right conferred by Article 19(1)(c). That right of that Society remains unimpaired and un-interfered with by the impugned Act and Ordinance.”

In OK Ghose Vs. EK Joseph[26] the Constitution Bench of our Apex Court held that the restriction placed on Government Servants to form unions infringed the fundamental right of the Government servants to form associations or unions guaranteed under Art.19 (1) (c) and could not be justified as a reasonable restriction imposed in the interest of public order under Art.19 (4). But, the Court reiterated what had been said by other Constitution Benches earlier that the rule prohibiting Government Servants from striking was valid as there was no fundamental right to strike.

7. Board of Trustees, Ayurvedic & Unani Tibia College Vs. State

In this celebrated decision[27] our Apex Court upheld the right of State Legislature to enact The Tibia College Act, 1952 with respect to the management of a registered society. The enactment was necessitated when the College had been mismanaged and struggle ensued between the trustees.

8. Take-Over: Enactment Struck Down

As Failed to Make Provision for Restoration of Elected Body

In Asom Rastrabhasa Prachar Samiti Vs. State of Assam,[28] the impugned Act was enacted to meet a contingency for taking over of the management of the Prachar Samiti, temporarily. However, it failed to make any provision for the restoration of the elected body in due course. Not only were new members introduced into the Samiti, no norms were laid down for nominating the government nominees (who could be any one), and the elected members were kept away from the control of the Samiti. On the facts of the case and the implications of the provisions contained in the impugned enactment, the Court concluded that the right of association was virtually taken away; and in the name of temporary control and management on the affairs of the society, what was done was a permanent deprivation. In response to a query raised by the Court it had been stated by the State that the State had no desire to restore the Samiti. The impugned legislative provision was, therefore, struck down as violative of Article 19(1)(c) of the Constitution.

9. Parliament Cannot Infringe Constitutional Rights: Damyati’s Case

The Hindi Sahitya Sammelan Act considered in Smt. Damyanti Naranga Vs. The Union of India,[29] compulsorily altered the composition of the Sammelan, a society registered under the Societies Registration Act, 1860. Our Apex Court held that the Act was a breach of the ‘right to form association’; because, it violated the composite right of forming an association and the right to continue it as the original members desired. The Parliament had enacted the Hindi Sahitya Sammelan Act under which outsiders were permitted to become members of the Sammelan, without the volition of the original members.

It was held that the Parliament cannot alter the composition of the society itself. The members, who voluntarily formed the Association, cannot be compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. The Constitution confers an association and its members the right to refuse membership to those who are not acceptable to the existing body of members.

The alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders.

The Court held further:

“The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any opinion being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association”.[30]

10. Damyanti’s Case Distinguished in Subsequent Cases

Damyanti’s case is distinguished in several cases, including the following cases, pointing out that the Government had, in that case, interfered in the management of the Society:

Rajasthan Cricket Association case;[31]
Delhi Police, NKG Sangh case;[32]
Bhandara Distt. Central Co-op Societies case;[33] and
Dharam Dutt’s case.[34]

In Daman Singh Vs. State of Punjab,[35] Damyanti’s case was distinguished on the ground that it was a case where an unregistered society was, by statute, converted into a registered society which bore no resemblance whatever to the original society; and that the new members could be admitted in large numbers so as to reduce the original members to an insignificant minority. In State of UP Vs. COD Chheoki Employees’ Co-op. Society Ltd[36] it was pointed out that the Hindi Sahitya Sammelan Act, considered in Damyati’s case, was violative of Article 31 of the Constitution of India, as it stood then.

The composition of the society itself was transformed by the Act and the voluntary nature of the association of the members who formed the original society was totally destroyed. And, it contravened the fundamental right guaranteed by Article 19(l)(f).[37]

11. Authorities Required To Record Reasons

It has been held in Km. Neelima Misra Vs. Dr. Harinder Kaur Paintal[38] and S.N. Mukherjee Vs. Union of India[39] that an administrative order which involves civil consequences must give reasons. S.N. Mukherjee’s case it was observed:

“For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision”.

In Union of India Vs. E.G. Nambudiri[40] it is observed:

“Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered legal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide, it is always open to the authority concerned to place reasons before the court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records. Reasons are not necessary to be communicated to the Government servant. If the statutory rules require communication of reasons, the same must be, communicated but in the absence of any such provision absence of communication of reasons does not affect the validity of the order”.

12. Take-Over: Bad, Where No Provision in the Acts Concerned

In IIT College of Engineering Vs. State of HP[41] our Apex Court did not approve the take-over of the management of an unaided private college by the Administrator as there was no provision in the AICTE Act or the H.P. Education Act or the University Act authorizing such an action. The Court observed that the imposition of an Administrator to take over the reins of administration for an indefinite period[42] would undoubtedly amount to interference with the right of administering and managing a private educational institution which is now recognised to be a part of the fundamental right under Article 19(l)(g) as held by this Court in T.M.A. Pai Foundation Vs. State of Karnataka.

13. Co-operative Societies – Created by Statute

Co-operative societies being creatures of the statute, once a Co-operative Society is formed and registered, the rights of the society and that of its members stand abridged by the provisions of the Act. The activities of the societies are controlled by the statute. Therefore, there cannot be any objection to statutory interference with their composition or functioning merely on the ground of contravention of individual’s right of freedom of association by statutory functionaries.[43]

14. A Member Cannot Assail Statutory Interference:

In Daman Singh Vs. State of Punjab[44] it is held, distinguishing Smt. Damyanti Naranga Vs. The Union of India, [45] as under:

“In the cases before us we are concerned with Co-operative societies which from the inception are governed by statute. They are created by statute, they are controlled by statute and so, there can be no objection to statutory interference with their composition on the ground of contravention of the individual right of freedom of association.”[46]

Our Apex Court further held that once a person becomes a member of a Co-operative Society, he loses his individuality qua the Society and he has no independent rights except those given to him by the statute and the bye laws. This view has also been approved in State of UP Vs. COD Chheoki Employees’ Coop. Society Ltd.[47] wherein our Apex Court has held that no individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.

15. Take-over and Appointment of Administrator: Allowed Prayer

For No Action by Authorities, in spite of Mismanagement.

In a Public Interest Litigation in Sanjay Gupta Vs. State of M.P.[48] it was pleaded that due to irregularities and mismanagement of the society the future of near about 1200 students who were getting education in the college and schools run by a Society was in dark. The petitioner prayed to takeover the society and to appoint an administrator. The Court found that in spite of the adverse reports, no action had been taken by the authorities. Observing that the right to receive proper education is a part and parcel of Article 21 of the Constitution and considering the judgment of the Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal[49] it was held that a writ petition in the shape of PIL was maintainable.

The Court appointed the Additional Collector, Gwalior as Administrator of the Society and gave directions for election and investigation in regard to financial irregularities in the light of Sec. 32 and 33 of the M.P. Societies Registrikaran Adhiniyam, 1973.

16. Take-over: Balance Between Institutional and Public Interest

In Dharam Dutt Vs. Union of India[50] the impugned legislation was held to be a reasonable legislation enacted in the interest of the general public and to govern an institution of national importance, and therefore, it was found to be valid.

It is held in this decision:

“The new body takes over the activities of the pre-existing society by running the Institution which too is known as ICWA. So far as the society ICWA is concerned, it has been left intact, untouched and un-interfered with. There is no tampering with the membership or the governing body of the society. The society is still free to carry on its other activities. No membership of the old society has been dropped. No new member has been forced or thrust upon the society. The impugned legislation nominates members who will be members of the council, the new body corporate, different from the society. The pith and substance of the impugned legislation is to take-over an institution of national importance and an individual activity which would fall outside the purview of these Articles.”

Gandhi Harijan Ucchar Madhyamik Vidyalay Vs. Director of Education,[51] arose when the management of a school was taken over under the Delhi School Education Act, 1973, after issuing show cause notice, pointing out confrontation between the management of the school and a section of the teaching staff as also .the conflict between the management of the school and the authorities. It was observed that taking over of management of the school would involve a conflict between individual or institutional interest on the one hand, and public interest, which is sought to be served by the takeover, on the other. There is the imperative need to balance the two requirements. It was observed:

“While it is not possible to put the conditions which may justify a takeover of a management in the strait-jacket of a judicially evolved definition, there could be no doubt that the takeover of a management of an institution would, ordinarily, be resorted to where other measures to deal with the affairs of an institution complained of, have failed to achieve the desired result.”

17. Take Over Management of Property, for a limited period:

In SP Mittal Vs. Union of India,[52] the Constitution Bench of our Apex Court held, inter alia, that assuming but not holding that the Society or Auroville were a religious denomination, the Auroville (Emergency Provisions) Act, which took over the management of Auroville, for a limited period, was not hit by Article 25 or 26. It did not curtail the freedom of conscience and the right to freely profess, practice and propagate one’s own religion. It was observed in this case that ‘the right of management in matters of religion of a religious denomination’ under Article 26(b) was not taken away by this enactment; what was taken away was the right of management of the property of Auroville which was a secular matter. So also the Act did not curtail the right of any section of citizens to conserve its own language, script or culture conferred by Article 29. An activity, secular in nature, though assumed to be of the Society or the organization to be of religious denomination, did not adversely affect the freedom of conscience and the right to freely profess, practice and propagate one’s own religion. The Constitution Bench has drawn a distinction between such activities of the institution which would necessarily fall within the purview of Articles 25, 26 or 29.

It is observed: The disciples and devoted followers of Sri Aurobindo formed the Aurobindo Society in Calcutta and got it registered as a Society with the object of preaching and propagating the ideals and teachings of Sri Aurobindo and the Mother. The Society for its Auroville project received grants and subventions from UNESCO and also from the Government of India. However, after the death of the Mother, complaints started pouring in with the Central Government which, on enquiry, revealed mismanagement of the affairs of the Society, misuse of the funds thereof and diversion of the funds meant for Auroville to other purposes. There was in-fighting between the groups of members and the situation went out of control. The Auroville (Emergency Provisions) Ordinance, 1980, was promulgated followed by an Act, whereby the management of Auroville was taken over, though for a limited period. The constitutional validity of the Act was challenged on the ground that Articles 25, 26 29 and 30 and also Article 14 were infringed; and that the Parliament had no legislative competence to enact the said Act.

18. Admission of New Members: State Cannot Compel

What is in the interest of the society is primarily for the society alone to decide and it is not for an outside agency to say.[53]

The bye laws of a Society or a Club prescribe the qualifications of the Members to be admitted. They are in the nature of contract between the members. Therefore the right of admission of new members also remains at the will and option of the members.[54] The State or an enactment cannot compel admission of members, contrary to the bye laws of a Society.[55]

It is held in A P Dairy Development Corporation Vs. B Narasimha Reddy[56] as under:

“It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires of Article 14 of the Constitution …. The constitutional right to freely associate with others encompasses associational ties designed to further the social, legal and economic benefits of the members of the association. By statutory interventions, the State is not permitted to change the fundamental character of the association or alter the composition of the society itself. The significant encroachment upon associational freedom cannot be justified on the basis of any interest of the Government. … However, when the association gets registered under the Co-operative Societies Act, it is governed by the provisions of the Act and rules framed thereunder.”

It held further:

“Importing the fiction to the extent that the societies registered under the Act 1995, could be deemed to have been registered under the Act 1964 tantamount to forcing the members of the society to act under compulsion/direction of the State rather than on their free will. Such a provision is violative of the very first basic principles of cooperatives. More so, the Act is vitiated by non-application of mind and irrelevant and extraneous considerations.”

19. Action of Legislature: If Violative of Article 14, Arbitrary

When the association/society has an option/choice to get it registered under a particular (Co-operative Societies’) statute, [57] if there are more than one statute operating in the field, the State cannot force the association/society to get itself registered under a statute for which the association/society has not applied. If the State does so, it will ‘violate Article 19(1)(c) of the Constitution of India’. It is not permissible in law to do something indirectly, if it is not permissible to be done directly.’[58]

20. Formation of Associations Is Different From Running Business

The right of the citizens to form the association is different from running the business by that association. Therefore, right of individuals to form a society has to be understood in a completely different context. A fundamental right to form the association cannot be coupled with the fundamental right to carry on any trade or business. [59] After an Association has been formed and the right under Art. 19(1)(c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire.[60]

In TK Rangarajan Vs State of Tamil Nadu[61] the Supreme Court has held that the right to form an association does not carry with it the right to strike work.

21. Escheat

If a club or society is defunct and no one claims that the club or society functions, the principles and law on escheat allows the vesting of property in Government. But in case of dispute, the onus will be heavy on the State to make out a case of escheat or bona vacantia. Though only a few members of the society have shown any interest in matters pertaining to the society for 36 years or so, it might still not be presumed that the society was defunct that would warrant dissolution under the So. Rgn. Act.[62]

[1] Darius Rutton Kavasmaneck Vs. Gharda Chemicals: 2014 AIR (SCW) 6441, 2015-188 Comp. Cases 291

[2] AIR 2004 SC 4504

[3] 2013 (16) SCC 82: 2013 Sup AIR (SC) 437; 2013 AIR(SCW) 5683

[4] AIR 2004 SC 1295

[5] AIR 1983 SC 1

[6] AIR 1988 SC 1136

[7] AIR 1985 SC 973

[8] AIR 1976 SC 340

[9] AIR 1962 SC 171

[10] AIR 1962 SC 458

[11] AIR 1952 SC 196

[12] See Chapter: Vesting of Property.

[13] AIR 1958 AP 773

[14] Quoted in: Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392.

[15] 62 Bom LR 790

[16] AIR1988 Mad 27

[17] Thalapalam Service Co Operative Ltd Vs. Union of India: AIR 2010 Ker 6. Appeal Judgment: Thalappalam Ser. Coop. Bank Vs. State of Kerala: 2013 (16) SCC 82; 2013 Sup AIR (SC) 437; 2013 AIR (SC) (CIV) 2758, 2013 AIR(SCW) 5683.

[18] See Chapter: Effect of Registration & Incorporation

[19] See: Tika Ramji’s case: AIR 1956 SC 676; P. Balakotaiash’s case: AIR 1958 SC 232; All India Bank Employees’ case: AIR 1962 SC 171; Balmer Lawrie Workers Union’s case: AIR 1985 SC 311; Daman Singh Vs. State of Punjab: AIR 1985 SC 973.

[20] P K Dash, Advocate Vs. Bar Council of Delhi: AIR 2016 Del 135.

[21] By virtue of Article 12.

[22] The Board of Trustees, Ayurvedic And Unani Tibia College Vs. The State: AIR 1962 SC 458; S.P. Mittal vs. UOI: AIR 1983 SC 1.

[23] P K Dash, Advocate Vs. Bar Council of Delhi: AIR 2016 Del 135; Daman Singh Vs. State of Punjab: AIR 1985 SC 973. Also see: L.N. Mishra Institute of Econ.Development Vs. State of Bihar: AIR 1988 SC 1136; Dharam Dutt Vs. Union of India: AIR 2004 SC 1295: S.P. Mittal Vs. Union of India AIR 1983 SC 1: Gandhi Harijan Ucchar Madhyamik Vidyalay Vs. Director of Education: AIR 1977 Del 240.

[24] AIR 1988 SC 1136

[25] AIR 2004 SC 1295. It followed SP Mittal V. Union of India: AIR 1983 SC 1.

[26] AIR 1963 SC 812

[27] AIR 1962 SC 458

[28] AIR 1989 SC 2126.

[29] AIR 1971 SC 966.

[30] Quoted in A P Dairy Development Corpn Vs. B Narasimha Reddy: AIR 2011 SC 3298.

[31] Rajasthan Cricket Association Vs. State of Rajasthan: AIR 2005 Raj 144.

[32] Delhi Police Non Gazetted Karmachari Sangh Vs. Union Of India: AIR 1987 SC 379

[33] AIR 1993 SC 59

[34] Dharam Dutt Vs. Union of India: AIR 2004 SC 1295

[35] AIR 1985 SC 973. See also: Sumangalam Hous. Soty Vs. Suo Motu High Court of Gujarat: AIR 2007 SC 671; Zoroastrian Co Operative Housing Society Vs. District Registrar: AIR 2005 SC 2306.

[36] AIR 1997 SC 1413

[37] See also: L.N. Mishra Institute of Economic Development and Social Change, Patna Vs. State of Bihar: AIR 1988 SC 1136.

[38] AIR 1990 SC 1402

[39] AIR 1990 SC 1984

[40] AIR 1991 SC 1216

[41] (2003) 7 SCC 73)

[42] See also: Shri Rangaswami Vs. The Sagar Textile Mills:AIR 1977 SC 1516; State of Uttar Pradesh Vs. Jogendra Singh: AIR 1963 SC 1618.

[43] A P Dairy Development Corporation Vs. B Narasimha Reddy: AIR 2011 SC 3298

[44] AIR 1985 SC 973

[45] AIR 1971 SC 966.

[46] Quoted in Sumangalam Co-op Housing Society Ltd Vs. Suo Motu High Court of Gujarat: AIR 2007 SC 671; State of U.P. Vs. C.O.D. Chheoki Employees’ Coop. Society Ltd : AIR 1997 SC 1413; Zoroastrian Co-op. Housing Society Vs. District Registrar AIR 2005 SC 2306.

[47] AIR 1997 SC 1413: Followed in Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar, Co-op. Societies AIR 2005 SC 2306; Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774; Chandigarh Housing Board Vs. Devinder Singh: AIR 2007 SC 1723.

[48] 2014-2 MPLJ 520

[49] (2010) 3 SCC 402

[50] AIR 2004 SC 1295

[51] AIR 1977 Del 240

[52] AIR 1983 SC 1.

[53] State of Maharashtra Vs. Karvanagar Sahakari Griha (2000) 9 SCC 295; Zoroastrian Co -operative Housing Society Vs. District Registrar AIR 2005 SC 2306.

[54] Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973

[55] Zoroastrian Co -operative Housing Society Vs. District Registrar AIR 2005 SC 2306.

[56] AIR 2011 SC 3298

[57] A P Dairy Development Corn. Vs. B Narasimha Reddy: AIR 2011 SC 3298.

[58] See: Sant Lal Gupta Vs. Modern Co-op. Group Housing Society: JT 2010 (11) SC 273

[59] Tata Engineering & Locomotives Vs. The State of Bihar: AIR 1965 SC 40; AP Dairy Devlopnt. Corpn. Vs. B Narasimha Reddy: AIR 2011 SC 3298.

[60] Smt. Damyanti Naranga Vs. The Union of India: AIR 1971 SC 966

[61] AIR 2003 SC 3033

[62] Mrigan Maity Vs. Daridra Bandhab Bhandar: 2011-4 Cal LT.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Election & Challenge in Societies and Clubs

Saji Koduvath, Advocate

Synopsis

1. Principles of General Election: Extended in General
2. “Democracy” and “Free and Fair Election”
3. Holding Annual General Meeting is Statutory; Election Not
4. Permanent Gov. Body and Right of Vote to Life-Members
5. No Fundamental Right or Common Law Right to Contest
6. Candidature: An Individual Membership Right
7. Definition of ‘Member’ & Right to Vote
8. Non-Payment of Subscription & Right to Vote in Election
9. T.N. So. Regn. Act Provides for Compulsory Election
10. Strict Pleading and Standard of Proof
11. Validity of Election: Jurisdiction with Courts
12. Courts Sparingly Exercise Jurisdiction
13. Right To Vote or Stand as a Candidate, Not a Civil Right
14. Right to Challenge an Election Is Not a Common Law Right
15. Locus Standi of a Member to Challenge Election
16. Individual Can Maintain Cause of the Collective Body
17. Individual and Corporate Membership Rights
16. Election Process
17. Powers of a Returning Officer
18. Duties of Returning Officer
19. Ordinarily, Courts will not Interfere withElection Process
20. Jurisdiction of Civil Courts is ‘Rather Limited’: Principles
21. Standard of Proof in Election Matters:
22. Temporary Injunctions
23. Technicalities of Election Petitions
24. Instances of Courts Interference before Completion
25. Court Interfere for Fair and Impartial Election
26. No Question of Estoppel if inherent illegality
27. Nomination Paper Rejected: Writ Petition not Maintainable
28. Electoral Roll: Illegality in Preparation: Remedy
29. Electoral Roll: Illegality in Preparation: Courts Interfere
30. Electoral Rolls: Non-inclusion: Courts Will Not Interfere
31. Electoral Roll: Preparation on Invalid Provisions
32. Electoral Roll: Election on Nonexistent Rules
33. Acceptance of List of Gov. Body District Registrar – Effect
34. Section 25 of So. Regn. Act as Amended by State of U.P
35. Non-convening of the Meetings and Acquiescence
36. Courts Order Election and Appoint Receivers
37. If Violation of Bye laws Court Sets Right the Illegalities
38. Effect of Failure to File Documents u/s 4

Provisions of the Societies Registration Act, 1860:

2. Memorandum of association: The memorandum of association shall contain the following things, that is to say, the name of the society; the object of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.
4. Annual list of managing body to be filed: Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of joint-stock Companies, of the names, addresses and occupations of the governors, council, directors, committee or other governing body then entrusted with the management of the affairs of the society.
15.Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
Disqualified members: But in all proceedings under this Act, no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.

1. Principles of General Election Extended to Elections in General

The principles of law under the Representation of People Act, 1951 have been extended by our courts to elections in general[1] including that in Societies and Educational Institutions.[2]

2. “Democracy” and “Free and Fair Election”

‘Democracy’ and ‘free and fair election’ are inseparable twins. If no other authority is expressly or impliedly constituted by the bye laws of an association, the responsibility to conduct the election vests with the managing body that be in power.

In Rameshwar Prasad Vs. Union of India,[3] our Apex Court held as under:

“…Therefore, the well recognised position in law is that purity in the electoral process and the conduct of the elected representatives cannot be isolated from the constitutional requirements. ‘Democracy’ and ‘free and fair election’ are inseparable twins. There is almost an inseverable umbilical cord joining them. In a democracy the little man-voter has overwhelming importance and cannot be hijacked from the course of free and fair elections…….”

In KihotoHollohanVs.Zachillhu[4] it is held by the Supreme Court:

“Democracy is a part of the basic structure of our Constitution; and rule of law and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.”

In NimbaRajaram Mali Vs. Collector, Jalgaon[5] held as under:

“In a democratic society what is important is the Will of the majority and the elected representatives must honour the will of the majority. It is immaterial to analyse and debate on the reasons behind the will of the majority or the specific reasons for such will being expressed. The will of the majority is of paramount importance and it must be respected by all elected representatives responsible for the governance of such democratic institutions. … Unless it is shown that while passing such a resolution of No Confidence Motion, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the Court or statutory authorities adjudicating such disputes.”

3. So. Regn. Act: Holding Annual General Meeting is Statutory; Election Not

Sec. 4 of the Societies Registration Act, 1860 postulates holding of Annual General Meeting. These provisions (also the Memorandum and Articles of Association of the society) as to holding Annual General Meetings, are mandatory; and not directory.[6]As per Sec. 2 of the Societies Registration Act the management of the affairs of a society is entrusted with the governing body. The rules of the society have to direct the details of such entrustment.

It is pertinent to note that the Societies Registration Act, 1860 does not specifically direct ‘election’ of the governing body. But various States’ amendments (and State-Acts) provide for the same. The mode and modalities of formation of the governing body is determinedly left,under Sec. 16, to the ‘Rules and Regulations of the society’.

Sec. 16 reads:

Governing body defined: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Article 243ZK of the Constitution Mandates Election in Co-operative Societies

Part IXBof the Constitution of India,that deals with the Co-operative Societies, is incorporated by the 97^th Amendment of the Constitution. Article 243ZK, under Part IXB, reads as under:

“243ZK. (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of the members of the outgoing board.
(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:
Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such election.”

4. Permanent Governing Body and Right of Vote to Life-Members

Holding election in a society (not Co-operative Societies) being not statutory, it can be demonstrated that the requirements in the definition of a member in Section 15 (payment of subscription and signature in the roll/list of members) do not control the right to vote in an election and to stand as a candidate (an individual membership right). It is also noteworthy that the definition of ‘Member’ (in Sec.15) is not exhaustive; and it is limited to ‘for the purposes of this Act’ alone. It is clear that it is a matter left for the bye laws.

Sec. 15 reads as under:

Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
Disqualified members:…. …

If the provisions in the bye laws of a Society gives right of vote to the life-members or honourary-members, who have not signed the roll/list of members, or even members in arrears, they may be valid. It can as well be argued that in case the bye laws of a society provide for permanent governing body, without an election, the same (so also nomination of governing body by an ‘outsider’) will not be illegal; and it may not be legitimate to argue that the provisions of such bye laws are unreasonable or opposed to ‘public policy’[7] on the premise that bye laws of a society or a club is a contract[8] amongst its members.

The above argument may be countered by urging that when a person becomes a member of the society, he would have no independent rights, and lose his individuality[9] qua the society except those that are given to him by the statutes concerned and bye laws;[10] and the rights of members merge in the rights of the society.[11] In State of UP Vs. CD Chheoki Employees Co-operative Society,[12] our Apex Court explicated it with the analogy that the stream cannot rise higher than the source.

7. Disqualified Members

As shown above, the definition of ‘Member’ (in Sec.15) in the Societies Registration Act, 1860, is not exhaustive, as it is ‘for the purposes of this Act’alone.

The second limb of Section 15 reads as under:

Disqualified members: But in all proceedings under this Act, no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.

The words in the second limb of Section 15, refers to ‘all proceedings under this Act’.Therefore, the disqualifications (in votingand counting as a member)are confined[13] to the activities enjoined in the Act alone –that is, to take part in the meeting (i) to make bye laws (S. 9), (ii) to amend the ‘purposes’ (S. 12), (iii) to take decision to ‘amalgamate’ with another society (S.12), and (iv) for dissolution (S. 13).

The wording, ‘whose subscription at the time shall have been in arrears for a period exceeding three months’, may also support the view that there can be ‘permanent members’.

5. No Fundamental Right or Common Law Right to Contest Election

The rights of a person to contest an election or to challenge it is neither a fundamental right nor a common law right; but are statutory rights[14]or rights originate from the bye laws of an association.[15]

6. Candidature: An Individual Membership Right

Right to stand as a candidate for election as a Director of the Company is well accepted as an individual membership right.[16] Our courts have held that the general principles governing the individual membership rights, and right of suit, of an individual share holder (or a member) of the company would apply to the members of societies or clubs also.[17]

8. Non-Payment of Subscription & Right to Vote in Election

Section 15 of the Societies Registration Act does not direct expulsion or removal of member from the society for nonpayment of subscription; in any case, unless an opportunity of hearing is given to the member.[18] Section 15 of the Societies Registration Act only lays down that such member cannot be entitled to vote or participate in the meeting. However, that does not mean that notice of the meeting itself should not be issued to him.

9. T.N. Societies Registration Act Provides for Compulsory Election

Deviating from the (Central) So. Registration Act, 1860, T.N. Societies Registration Act, 1975, Sections 15(4) provides that ‘the term of office of the members of the committee shall not exceed three years from the date of their appointment’.S. 26(4) enables the Registrar to depute an officer to be present at the general meetings of the Institution and the Charitable Society.

In Periyar Self-respect Propaganda Institution, TrichyVs. State of TN[19] the constitutional validity of these provisions were upheld observing the following:

“By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the Charitable Society arid certainly it cannot assume the colour of a fundamental right. ….. As rightly contended by the learned Advocate General appearing for the State, neither the Institution nor the Charitable Society, nor the present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had already formed, they must be allowed to continue to have that set up and any disturbance thereof would amount to violation of the right to form an association guaranteed under Art. 19(1)(c). If at all, such a right could be characterised as a peripheral or concomitant right which may facilitate the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every association formed shall effectively achieve its objectives without interference by law. This is not a case where the composition of the association is being altered. Neither the members nor the association of members could claim that they have a fundamental right to have office for life.”

10.Strict Pleading and Standard of Proof

An election petition is a strict statutory proceeding.[20]In JaganNathVs.Jaswant Singh[21] it is observed:

“The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power.”[22]

In election matters the standard of proof is high and burden is on the election petitioner. Mere preponderance of probabilities or presumptions cannot be the basis to challenge an election. The election proceedings are akin to criminal proceedings.[23]

It is held in Gajanan Krishnaji Barat Vs. Dattaji Raghobaji Meghe[24] that in an election petition, based on allegations of commission of corrupt practice, the onus lies heavily on the petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate.

11.Validity of Election: Jurisdiction with Courts; not with Registrar.

Though Section 36(1) of the Tamil Nadu Societies Registration Act, 1975 empowers the Registrar, either of his own motion or on the Application of a majority of the members of the committee of management or on the Application, of not less than one third of the members of the Society to hold an enquiry into the Constitution, working and financial condition of a registered Society, it is held in S. Thamil Arasan President of Chennai Vyasarpadi Nadar Nagar Progressive Association Chennai Vs. R. Narayanan[25] that the Registrar is not competent to enquire into the validity of an election, while performing a mere ministerial function; the jurisdiction is vested with the Courts.

12.Courts Sparingly Exercise Jurisdiction

The decision taken by the concerned authority during the course of election is not open to judicial review except on the ground of mala fide or arbitrary exercise of power.[26]Courts will not interfere with discharging duties by the elected office bearers of an organization, without cogent and compelling grounds. A simple breach of any Rule will not give rise to a cause of action for any member unless there is manifest illegality, or act or omission that goes to the root of the matter. In other words, the alleged violation should be so grave that it could not be condoned by the general body.[27]

13.Right To Vote or Stand as a Candidate, Not a Civil Right

Right to Challenge an Election Is Not a Common Law Right

It is observed in S Thamil ArasanVs. R Narayanan[28] that since there is no specific provision permitting the challenge of an election to the society, the only remedy for challenging such election is by means of a civil suit.

NP PonnuswamiVs. Returning Officer, Namakkal[29] it was observed:

“The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.”

The rights arising out of elections including the right to contest or challenge an election are not common law rights but are creatures of the statutes which create, confer or limit those rights; and, therefore, for deciding the question whether an election can be set aside on any alleged ground, the Courts have to function within the framework of that law and not travel beyond it.[30] It is a special right conferred under a self contained special law. Right to vote or stand as a candidate for election is not a civil right, but is a creature of a statute or a special law and must be subject to the limitations imposed by it. It will, therefore, be advantageous to look into the scheme of the Act.[31]

13.Locus Standi of a Member to Challenge Election

In TejBahadurvsShriNarendraModi[32] the Apex Court considered the question of the validity of the appellant’s nomination since that had a direct bearing on the question whether he had a right to question the election. After finding that the appellant was not a duly nominated candidate, it is held as under:

“We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.”

The Apex Court held in Bar Council of Delhi Vs. Surjeet Singh[33]:

A voter could challenge the election.
Merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case.
A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any latches and must be non-suited only on that account.

A member of a Society does not have the right to challenge Election unless his rights are personally affected by the impugned action.[34] He should have been a candidate or acquired the right to vote.

In Committee of Management, Sri Kachcha Baba inter College, Varanasi Vs. Regional Committee, PanchamMandal[35] it was held that a group of members of the General Body (and not by a rival committee of management) had no locus standi to challenge the result of the elections.[36]

There were divergent views, in UP, on the right of an individual member to file a writ petition. In certain cases[37] it was held that an individual member had no right to file the writ petition. The other set of decisions[38] observed that the writ petition could be maintained, subject to the existence of efficacious alternative remedy, when there was a breach of right of a person affecting his right to form an association, which was a fundamental right under Article 19(1)(c) of the Constitution, or there was a breach of the Statute. Both the divergent views had been considered by a Division Bench in Committee of Management, AryaKanyaPathshala Inter College, Bulandshahar v. State of U.P.[39] The Division Bench observed as under:

“There is no such proposition that an individual member cannot, in no circumstance, challenge the election of the Committee of Management….. It is clear that the question as to whether an individual member has locus to challenge the election of Committee of Management depends on facts of each case…..”[40]

14.Individual Can MaintainCause of the Collective Body

Where the right of an individual is affected or infringed, and, he has no other effective remedy, and where there are no vitiating circumstances such as delay, latches, etc., the cause of the collective body will be maintainable at the instance of an individual.[41]

15. Individual Membership Rights and Corporate Membership Rights

The Kerala High Court in Joseph Vs. Jos[42] observed as under:

“… There are two kinds of rights for a member of the company, one the individual membership right, and the other the corporate membership right. So far as the corporate membership rights are concerned, a shareholder can assert those rights only in conformity with the decision of the majority of the shareholders. An individual membership right is a right to maintain himself in full membership with all the rights and privileges appertaining to that status. …”

16.Election Process

Elections in associations are conducted in accordance with their Rules. If it is warrented, the court may intervene. In Hardeo Singh Vs. Union of India[43] the High Court of Uttarakhand being found it necessary that there should be a duly elected Management Committee for a Gurudwara for its proper management and administration, inter alia, following directions were issued with respect to election:

“The Election Officer for the purposes of the completion of the election process including
- de-limitation/re-determination of wards,
- preparation of electoral rolls,
- verification of electors,
- qualification of members,
- election process,
- publication of results,
- first meeting of elected committee,
- election of office bearers,
- first meeting of the committee,
- constitution of sub-committees etc.,
may constitute a committee not exceeding five members, whom the Election Officer finds suitable. Such five persons should be respectable and educated persons with no criminal record and no history of association with election of Gurudwara Sri Nanakmatta Sahib. These persons should have no interest or association with any candidate or group. They will also give an undertaking to the Election Officer that they have no interest in the election and they will not participate in canvassing or election etc. in any manner. The Election Officer shall follow such procedure, which is reasonable and on the basis of the principles of natural justice and in accordance with the Sikh principles and values.”

ElectionNorms and Procedure

In Food Corporation of India Staff Union Vs. Food Corporation of India[44] the Supreme Court laid down‘norms and procedure’to be followed for assessing the representative character of trade unions. A detailed and exhaustive election procedure is laid down therein. It reads as under:

“(i) As agreed to by the parties the relative strength of all the eligible unions by way of secret ballot be determined under the overall supervision of the Chief Labour Commissioner (Central) (CLC).
(ii) The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCI. The Returning Officer shall be an officer of the Government of India, Ministry of Labour.
(iii) The CLC shall fix the month of election while the actual date/dates of election shall be fixed by the Returning Officer.
(iv) The Returning Officer shall require the FCI to furnish sufficient number of copies of the lists of all the employees/works (category III and IV) governed by the FCI (Staff) Regulations, 1971 borne on the rolls of the FCI as on the date indicated by the CLC. The list shall be prepared in the proforma prescribed by the CLC. The said list shall constitute the voters list.
(v) The FCI shall display the voters list on the notice boards and other conspicuous places and shall also supply copies thereof the each of the union for raising objections, if any. The unions will file the objections to the Returning officer, within the stipulated period and the decision of the Returning Officer shall be final.
(vi) The FCI shall make necessary arrangement to:
- (a) give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice board and also at other conspicuous places for the information of all the workers;
- (b) print requisite number of ballot papers in the proforma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions ;
- (c) the ballot papers would be prepared in the proforma prescribed by the CLC in Hindi/English and the concerned regional language;
- (d) set up requisite number of polling stations and booths near the premises where the workers normally work; and
- (e) provide ballot boxes with requisite stationery, boards, sealing wax etc.
(vii) The Returning officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of polling assistants to conduct the election in an impartial manner. The Presiding Officers and the polling assistants may be selected by the Returning Officer from amongst the officers of the FCI.
(viii) The election schedule indicating the dates for filing of nominations, scrutiny of nominations papers, withdrawal of nominations, polling, counting of votes and the declaration of results, shall be prepared and notified by the Returning Officer in consultation with the FCI. The election schedule shall be notified by the Returning Officer well in advance and at least one month’s time shall be allowed to the contesting unions for canvassing before the date of tiling the nominations.
(ix) To be eligible for participating in the election, the unions must have valid registration under the Trade Unions Act, 1926 for one year with an existing valid registration on the first day of filing of nomination.
(x) The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer.
(xi) At the time of polling, the polling assistant will first score out the name of the employee/workman who comes for voting, from the master copy of the voters’ list and advise him thereafter to procure the secret ballot paper from the Presiding Officer.
(xii) The Presiding Officer will hand over the ballot paper to the workman/employee concerned after affixing his signatures thereon. The signatures of the workman/employee casting the vote shall also be obtained on the counterfoil of the ballot paper. He will ensure that the ballot paper is put inside the box in his presence after the voter is allowed to mark on the symbol of the candidate with the inked rubber stamp in camera. No employee/workman shall be allowed to cast his vote unless he produces his valid identity card before the Presiding Officer concerned In the event of non production of identity card due to any reason, the voter may bring in an authorisation letter from his controlling officer certifying that the voter is the bona fide employee of the FCI.
(xiii) After the dose of the polling, the Presiding Officer shall furnish detailed ballot paper account in the proforma prescribed by the CLC indicating total ballot papers received, ballot papers used, unused ballot papers available etc. to the Returning Officer.
(xiv) After the close of the polling, the ballot boxes will be opened and counted by the Returning Officer or his representative in the presence of the representative of each of the unions. All votes which are marked more than once, spoiled, cancelled or damaged etc. will not be taken into account as valid votes but a separate account will be kept thereof.
(xv) The contesting unions through their representatives present at the counting place may be allowed to file applications for re- counting of votes to the Returning Officer. The request would be considered by the Returning Officer and in a give case if he is satisfied that there is reason to do so he may permit recounting. However, no application for recounting shall be entertained after the results of the votes are declared.
(xvi) The result of voting shall the compiled on the basis of valid votes polled in favour of each union in the proforma prescribed by the CLC and signatures obtained thereon from the representatives of all the unions concerned as a proof of counting having been done in their presence.
(xvii) After declaring the results on the basis of the votes polled in favour of each union by the Returning Officer, he will send a report of his findings to the CLC. (xviii) The union/unions obtaining the highest number of votes in the process of election shall be given recognition by the FCI for a period of five years from the date of the conferment of the recognition.
(xix) It would be open to the contesting unions to object to the result of the election or any illegality or material irregularity which might have been committed during the election. Before the Returning Officer such objection can only be raised after the election is over. The objection shall be heard by the CLC and dispose of within 30 days of the filing of the same. The decision of the CLC shall be final subject to challenge before a competent court, if permitted under law.”

17. Powers of a Returning Officer

In the absence of express or implied regulations to the contrary,[45] the returning officers, domestic tribunals, syndicate of a university, enquiry committees, etc. are also free to evolve and follow their own procedure as they are ‘masters of their own procedure’;[46] but, they must ensure natural justice in their proposed actions.[47] Lord Denning, Master of Rolls, in the Court of Appeal in England observed, in the matter of a non-statutory domestic tribunal, as under:[48]

“Is a party who is charged before a domestic tribunal entitled as of right to be legally represented, much depends on what the rules say about it. When the rules say nothing, then the party has no absolute right to be legally represented. It is a matter for the discretion of the tribunal. They are masters of their own procedure: and, if they, in the proper exercise of their discretion, decline to allow legal representation, the Courts will not interfere….”[49]

It is held in Guru Nanak University Vs. Iqbal Kaur Sandhu[50] as under:

“It is not the province and the function of this Court to lay down either the time or the mode and manner in which autonomous and high-powered bodies like the Syndicate of the appellant-University are entitled to conduct their business in the meetings. They are equally masters of their own procedure and unless there is an infraction of the clear statutory rules in carrying out their duties and in conforming to the procedure prescribed by law, this Court would be ill-advised to render any gratuitous advice to them in their autonomous field in dealing and disposing of their business.”

The election schedule (fixing the dates for filing of nominations, scrutiny of nominations papers, withdrawal of nominations, polling, counting of votes and the declaration of results etc.)is, usually, made and announced by the Returning Officer in consultation with the authority responsible to conduct the election.

A Returning Officer merely conducts the election and has no power to consider the question as to whether a member is eligible to vote or not.[51] He cannot also cancel the membership of a person. After the declaration of the result, the Returning Officer becomes functus officio and he has no power or jurisdiction to change the declaration or to make any other declaration or to make an order to recount or to reconsider the result of election. The returning officer who makes the scrutiny of nominations has the power to reject nomination on proper grounds and he can decide on the eligibility of a candidate.

18.Duties of Returning Officer

The Returning Officer has to be perform his duties with detachment and impartiality.[52] Our Apex Court, in Food Corporation of India Staff Union Vs. Food Corporation of India,[53] propounded norms and procedures to be followed for assessing the representative character of the trade union.

19. Ordinarily, Courts will not Interfere with Election Process

In Supreme Court Bar Association Vs. BD Kaushik[54] our Apex Court held:

“Since 1952 this Court has authoritatively laid down that once election process has started the courts should not ordinarily interfere with the said process by way of granting injunction.”

In JaganNathVs.Jaswant Singh[55] it is observed:

“… It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.”

Remedies with respect to the disputes as to elections will have to be sought for after elections are over. This time-honoured principle is emphasised in the following decisions also.

Shaji K. Joseph Vs. V. Viswanath[56]
N.P. Ponnuswami Vs. Returning Officer[57]
Nanhoo Mal and Others Vs. Hira Mal[58].
Mohinder Singh Gill Vs. Chief Election Commr.[59]:
Boddula Krishnaiah Vs. State Elec. Commissioner, A.P.[60]
ShriSantSadguruJanardan Swami Vs. State of Maharashtra[61]
AnugrahNarain Singh Vs. State of U.P.[62]
Election Commissioner of India Vs. Ashok Kumar[63]
Abdulla Khan Vs. State of Orissa[64].
Abdul Latheef C.K. Vs. K.M. Haneefa[65]
Medical Council of India Vs. Regar/Returning Officer, TN[66]
Avtar Singh Vs. Delhi Sikh Gurudwara Mgmnt. Comtee,[67]
C. Subrahmanyam Vs. K. Ramanjaneyullu[68]
Ashok Kumar Jain Vs. NeetuKathoria[69]
K.K. Shrivastava Vs. Bhupendra Kumar Jain[70]

It is observed in Shaji K. Joseph Vs. V. Viswanath[71] while considering election to Dental Council of India under Section 3 (a) of the Dentists Act, 1948:

“So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent No.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to herein above clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court ‘s order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.”

In K.K. ShrivastavaVs.Bhupendra Kumar Jain[72] with respect to election to the Bar Council of Madhya Pradesh under the Advocates Act our Apex Court held:

“Where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.”[73]

In Proper Cases Courts Order Election and Appoint Receivers

Though not specifically sought for in relief, in proper cases, Courts order election and appoint receivers.

The courts interfere and grant relief in a given situation[74]disregarding the technicalities. For example:

(i) where the issue was not properly expressed and it was of formal nature;[75]
(ii) when a larger relief was prayed for and the claim for the same was not duly established but the evidence justified grant of smaller relief;[76]
(iii) where the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage;[77] and
(iv) to promote substantial justice; subject, of course to the absence of other disentitling factors or just circumstances where equity justifies bending the rules of procedure, where no specific provision or fairplay is violated – as procedure is the handmaid and not the mistress of the judicial process.[78]

Kerala High Court, in KP Muhammed Vs. M Abdurahiman,[79]held that when there was no validly elected committee for the proper management of an association, the civil courts would have jurisdiction to order election of the committee even if it was not sought for by the parties.

20.Jurisdiction of Civil Courts is ‘Rather Limited’: Principles

See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs

21.Standard of Proof in Election Matters:

The election of a returned candidate will not be set aside unless there are cogent and convincing reasons.[80] In election matters the standard of proof is high and burden is on the election petitioner. The court proceedings on election disputes are akin to criminal proceedings.[81] It is held in Gajanan Krishnaji Barat Vs. Dattaji Raghobaji Meghe[82] that in an election petition, based on allegations of commission of corrupt practice, the standard of proof required is, generally speaking, that in a criminal trial. The onus lies heavily on the petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate.

It is pointed out in Seth Gulabchand v. Seth Kudilal[83] that the rules applicable to circumstantial evidence in criminal cases would not apply to civil cases. The ordinary rules governing civil cases of balance of probabilities will continue to apply. Mere preponderance of probabilities or presumptions cannot be the basis to challenge an election.

22.Temporary Injunctions

Interference of courts after election-process commenced [84]and stopping an electionare very much against public policy.[85] But, there is no absolute restriction upon court; it is only limited.[86]

Election Tribunals under the Representation of Peoples Act are not conferred with power to grant temporary injunctions.When granting injunction is subject to the declaration sought for, in election matters it will be proper not to grant temporary injunction.[87]The success of a winning candidate at an election cannot be lightly interfered with; more so when no fault of his.[88] If ultimately, the suit is dismissed, the court cannot compensate for granting a temporary injunction.[89]

23.Technicalities of Election Petitions

In UmeshChalliyill Vs. K.P. Rajendran[90] our Apex Court ruled that the election petitions should not be dismissed at the threshold on technical defects which were purely cosmetic and do not go to the root of the matter. It is observed:

“However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the root of the matter and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the petitioner to rectify such defects.”[91]

24.Instances of Courts Interference before Completion of Election:

Election process was not in conformity with the relevant statutory provisions.[92]
Election Meeting not in conformity with Articles.[93]
Conduct of elections was not in accordance with the Bye laws of the Association.[94]
Voters’ list had been prepared on the basis of nonexistent rules.[95]
Violation of the essential provisions of the Election Rules and the Act and validity of the entire election is in challenge.[96]
Mala fide or arbitrary exercise of power.[97] Court interferes for fair and impartial election.[98]
Where validity of the entire election is in challenge beyond the election of a particular candidate, on the ground of the violation of the essential provisions of the Election Rules and the Act [99]
Where alternative remedy is no remedy in the eye of law.[100]

When the challenge of whole election is such that the alternative remedy is no remedy in the eye of law to cover the challenge; or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is available. In Bar Council of Delhi Vs. Surjeet Singh[101] the Court interfered since the Election Tribunal would have found itself incompetent to declare the proviso to R. 3 (3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34 (8) was no remedy at all.The illegalities made the entire election void and the statutory rulesunder which the election was conducted was invalid.

25.Court Interfere for Fair and Impartial Election

In proper cases the courts appoint Returning Officers or administrators for societies. The Calcutta High Court in East Bengal Club Vs. Paltu Mukherjee[102] appointed an impartial special officer to hold the election under his supervision for ensuring fair and impartial election of the club. In Sarbjit Singh Vs. All India Fine Arts and Crafts Society[103] the court appointed Retired Chief Justice of the High Court of Himachal Pradesh to be the Administrator of the Society and gave him directions for convening GB and election.

26.No Question of Estoppel if Inherent Illegality

If a member participated in a meeting or election knowing the illegality of the same he would be deemed to have acquiesced or concurred in the election and would be estopped from challenging its validity.[104]

But, neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into service in case of an election which is liable to be set aside by a court. Therefore,evena defeated candidates can challenge an election on its inherent illegality.[105]

27.Nomination Paper Rejected: Writ Petition not Maintainable

In N.P. Ponnuswami Vs. Returning Officer[106] the nomination paper of the appellant for election to the Madras Legislative Assembly was rejected by the Returning Officer. The appellant challenged the rejection of the nomination paper by filing a writ petition in the High Court which was dismissed on the ground that it had no jurisdiction to interfere with the order of the Returning Officer on account of Article 329(b) of the Constitution, which says that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. In appeal, our Apex Court with a Bench of six learned Judges examined the question whether the writ petition would be maintainable at the initial stage against an order rejecting the nomination paper.

It was observed in this decision:

“The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court.”

28.Electoral Roll:

Illegality in Preparation: Remedy is Election Petition

Even as to alleged illegality or breach of rules while preparing the electoral roll, courts will not interfere in the election process, once it is started.[107]

With regard to elections in a society registered under the Maharashtra Co-operative Societies Act, 1960, the Supreme Court[108] observed in ShriSantSadguruJanardan Swami Vs. State of Maharashtra as under:

“In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the election Tribunal.”

29.Electoral Roll:

Illegality in Preparation: Courts Interfere

If the electoral roll itself has been challenged on the ground that the members enrolled are in violation of the provisions of the Scheme of Administration then in such cases the courts can interfere. A valid electoral role is the basic requirement of a fair election.[109]

In Chief Commissioner, Ajmer Vs. RadheyShyamDani,[110] the Constitution Bench of our Apex Court upheld the decision of the Chief Commissioner on the ground that the electoral roll prepared was invalid as it was prepared in accordance with some invalid rules.[111]

In RamgulamShriBaijnath Prasad Vs. Collector, Guna[112]it was observed that when election held on the basis of rolls which had not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay.

In Pundlik Vs. State of Maharashtra[113] it is held by our Apex Court that where the voters’ list had been prepared on the basis of non-existent Rules, it would be illegal and the Court could interfere under Article 226 of the Constitution.

In Dev Prakash Balmukund Vs. Babu Ram Rewti Mal[114], it is held that if the very foundation of the election, namely, the electoral roll was illegal, no election on its basis could be proceed or be allowed to stand, but that did not mean that any kind of defect in the roll, however technical in its nature, would be suffice to reach such a conclusion.[115]

Courts Interferes if Result Materially Affected

Following Chief Commissioner, Ajmer Vs. Radhey Shyam Dani,[116]the Supreme court held in Bar Council of Delhi Vs. Surjeet Singh[117] that the question as to whether a writ petition on the ground of illegal preparation of the electoral roll would be maintainable or not depends upon the nature and the intensity of the error committed in the preparation of the electoral roll and its effect on the whole election. It is held:

“10. The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a case.”

30.Electoral Rolls

Non-inclusion: Courts Will Not Interfere

In MARVS Sai Baba Vs. Commissioner and Registrar of Co-Op. Societies,[118] held as under:

“7. . . It is pertinent to mention that the issue relating to the validity of membership of a society including that of wrong admission of a member or non-inclusion of a valid member in the rolls of the society is an issue to be decided before the election process begins and that can be a valid ground to invoke Section 32 (7) (a) of the Act to set right the things and then proceed for the elections and appoint a Person-in-charge to manage the affairs of the society in the interregnum. But, once a decision is taken to hold the elections and the election process commences by issue of notification, Section 32 (7) (a) of the Act has got no role and any dispute in connection with the election, be it of the nomination, of improper electoral roll and other aspects, have to be settled only by way of a judicial adjudication contemplated in Section 61 (3) of the Act. “

31.Electoral Roll:

Preparation on Invalid Provisions, Court Interferes

In Bar Council of Delhi Vs. Surjeet Singh[119] it was found by our Apex Court that the electoral roll prepared on the basis of invalid provisions resulted in vitiating the entire election, and that the writ petition for setting aside the election of the Bar Council of Delhi was maintainable. The Supreme Court while considering the validity of an electoral roll of Delhi Bar Council, omitting as many as 2000 Advocates on the basis of an invalid Rule framed by that Council, observed:

“9. We, therefore, hold that the impugned proviso to R. 3 (j) to the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2000 Advocates from the said roll was not valid in law. We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition. It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names. For the said purpose R.4 occurring in Chapter I of the Bar Council of India Rules could come into play. But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated-a matter which cannot be put within the narrow limit of the said rule. 10. The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to R. 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a case.” [120]

32. Electoral Roll:

Court Interfere when Election on Nonexistent Rules

In N Thippanna Vs. State of Karnataka[121] Division Bench of the Karnataka High Court by its interim order directed to hold the election but withheld the results. Relying on the Supreme Court decision in Bar Council of Delhi Vs. Surjeeth Singh[122] the Karnataka High Court in its final Judgment held that the electoral rolls prepared by the University, omitting a very large number of registered graduates, was not in conformity with the Act, the statutes and the general principles for preparation of electoral rolls, and that it was void in law. A valid electoral role is the basic requirement of a fair election.[123]

Though it is observed by our Apex Court in ShriSantSadguruJanardan Swami Vs. State of Maharashtra that when the process of election has been commenced it would be impermissible for the court to go into the questions as to breach of the Rule in the preparation of the voters’ list, it observed that where the voters’ list had been prepared on the basis of nonexistent rules, it would be illegal and the Court could interfere under Article 226 of the Constitution.

In Ahmednagar Zilla SDV and P Sangh Limited Vs. State of Maharashtra[124] though the appeal was dismissed following the principles of law laid down in Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra,[125]the Court directed the District Collector, Ahmednagar, to conduct fresh election of the Board of Directors to the appellant Society, forthwith.

33.Acceptance of List of Governing Body District Registrar – Effect

If a dispute arises as to whom among the two sets were the lawful members of the Governing Committee, the Registrar has the power to decide upon such a dispute under the Societies Registration Act as an incidental or consequential power in itself.The Registrar has to prima facie satisfy from the materials and evidences. There may not be an elaborate enquiry. However, such an enquiry made by the Registrar and the decision taken from it does not become final and the aggrieved party can take up the matter before a competent court for a decision as to who are the members of the governing body.[126]

34.Section 25 of So. Regn. Act as Amended by State of U.P[127]

Section 25 of the Societies Registration Act as amended by State of U.P. endows the ‘prescribed authority’ with the right to hear and decide in a summary manner disputes in respect of the election or continuance in office of office-bearers of societies.

Section 25 of the Societies Registration Act as amended by State of U.P. reads as under:

“25(1) The prescribed authority may, on a reference made to it by the registrar or by a least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office -bearer of such society, and may pass such orders in respect thereof as it deems fit:
Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied –
(a) that any corrupt practice has been committed by such office-bearer; or
(b) that the nomination of an candidate has been improperly rejected; or
(c) that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non -compliance with the provisions of any rules of the society.
Explanation I. – …………….. ………… …
Explanation II. – ………………… ……..
Explanation III. – ……………. ………..

But, when disputed questions of fact are involved, summary proceedings under Section 25 of the Act, 1860 will not be a bar for seeking remedy before the Civil Court as the summary proceedings under Section 25 is not an efficacious remedy.[128]

35.Non-convening of the Meetings: Acquiescence and Estoppel

Non-convening of Annual General Meetings is a serious allegation against the office-bearers of a Society. But in proper cases courts can invoke doctrine of acquiescence and estoppel.

In TJ Thomas Vs. CS Joseph[129] reliefs were claimed under the provisions of the Companies Act, 1956 read with 3 and 4 of the Kerala Non-Trading Companies Act, 1961 alleging, inter alia, that the respondents were not convening the Annual General Meetings regularly. The prayers were, among other grounds, rejected because it had come out in evidence that the non-convening of the meetings was due to the inaction on the part of petitioners; that the petitioners, if they were really interested in the affairs of the Sangam, should have taken appropriate steps at the appropriate time and seen that the Annual General Meetings were convened without fail; and that the conduct of the petitioners in this regard would show that they had without demur, acquiesced in the various activities of the respondents.

36.In Proper Cases Courts Order Election and Appoint Receivers

In K.P. MuhammedVs. M. Abdurahiman[130] both sides did not want an election to be conducted; and both were aiming at the administration or control of the Society, and for that purpose they were not so eager or anxious to have an election conducted in the manner suggested by the Court. The Kerala High Court, in order to resolve stalemate, orderedelection and appointed Receivers to manage its affairs.

37.If Violation of Bye laws Court Sets Right the Illegalities

In V. ArulkumarVs. Tamil Nadu Government Nurses Association[131] it is held that the court has to necessarily see as to whether the conduct of elections was in accordance with the Bye laws of the Association. If the same was in total violation of the Bye laws of the Association the court was certainly empowered to set right the illegalities and put the election process in motion to be performed in accordance with the Bye laws. Therefore it was held that the suit was maintainable.

38.Effect of Failure to File Documents u/s 4& Court Interference

Non-renewal of the registration of a society may be a bar to avail the benefits offered to registered societies, but the same by itself will not lead the inference that the society is not in existence.[132]

It is held in Nand Deo Pandey Vs. Committees of Management[133] that properly constituted committee of management was required to continue the proceedings of inquiry against the Principal of a Vidyalaya. The Managing Committee had ceased to be valid due to non-renewal of the registration of the society and non-holding of periodical elections under the provisions of the Societies’ Registration (U.P. Amendment) Act, 1960.

But in Nelson Vs. Kallayam Pastorate[134] it is held that the courts cannot set aside elections on the sole ground of non compliance of certain statutory provisions by it, and that in the event of becoming a society defunct, or failure to file documents under Sec. 4 of the So. Regn. Act, there is no bar for its members to revive its activities and to conduct the election of the office bearers.

[1] See: Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982

[2] Ram Pal Singh Vs. State of U P: LAWS(ALL)-2015-5-99

[3] AIR 2006 SC 980

[4] AIR1993 SC 412

[5] AIR 1999 Bom 335

[6] Sarbjit Singh Vs. All India Fine Arts & Crafts Society: ILR 1989-2 Del 585.

[7] See Contract Act, Sec. 23.

[8] Board of Trustees, Ayurvedic & Unani Tibia College Vs.The State: AIR 1962 SC 458; Siddheshwar Sahkari Sakhar Karkhana Vs. Commissioner of I T: AIR 2004 SC 4716;Hyderabad Karnataka Edn. Society Vs. Registrar of Societies: AIR 2000 SC 301;Co- op. Central Bank Vs. Addl. Industrial Tribunal, AP: AIR 1969 SC 245; Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn Ltd. : AIR 1971 SC 422;Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973.Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[9] Daman Singh Vs. State of Punjab: AIR 1985 SC 973; DamyantiNarangaVs. Union of India: AIR 1971 SC 966.

[10] Syed MunirHoda Vs. Bader Sayeed: TLMAD-2012-0-2262; Supreme Court Bar Association Vs. BD Kaushik: : (2011) 13 SCC 774; State of UP Vs. COD Chheoki Employees’ Coop. Society Ltd : AIR 1997 SC 1413.

[11] Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar: AIR 2005 SC 2306

[12] AIR 1997 SC 1413: Quoted in Zoroastrian Co-op. H. Society Ltd. Vs. District Registrar: AIR 2005 SC 2306; Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774; Chandigarh Housing Board Vs. Devinder Singh: AIR 2007 SC 1723.

[13] See: Sec. 9-14, 17 and 20

[14] JyotiBasu Vs. Debi Ghosal AIR 1982 SC 983

[15] SatyaNarainTripathiVs. State of UP: 2008 – 2 ADJ 222; 2008-71 All LR 698.

[16] NagappaChettiar Vs. Madras Race Club: AIR 1951 Mad 831; C L Joseph Vs. Jos: AIR 1965 Ker 68; Star Tiles Works Vs. N. Govindan: AIR 1959 Ker 254

[17] A. S. Krishnan Vs. M. Sundarum: AIR 1941 Bom 312; SatyavartSidhantalankar Vs. AryaSamaj, Bombay, AIR 1946 Bom 516; Nagappa Vs. Madras Race Club, AIR 1951 Mad 831; ShridharMisraVs.Jihandra, AIR 1959 All 598.

[18] ShriSarbjit Singh Vs All India Fine Arts and Crafts Society : ILR (1989) 2 Delhi 585.

[19] AIR1988 Mad 27

[20] P NallaThampyThera Vs. B L Shanker: AIR1984 SC 135

[21] (1954) SCR 892

[22] Referred to in Ram Sukh Vs. Dinesh Aggerwal: AIR 2010 SC 1227; Ram PhalKundu Vs. Kamal Sharma : AIR 2004 SC 1657; IndrajitBarua Vs. Election Commission Of India: AIR 1986 SC 103; P NallaThampyThera Vs. BL Shanker AIR 1984 SC 135; Samant N Balkrishna Vs. George Fernandez ; AIR 1969 SC 1201; Kumaranand Vs. Brij Mohan Lal; AIR1965 SC 628; Mahila Krishna Kumari Vs. MahilaSakunBhatnagar: AIR 1972 MP 155; Jagannath Dalai Vs. Rama Chandra Nahak: AIR 1959 Ori 26.

[23] Md. MajidHussain Vs. MdAqueel, AIR 2015 AP 21, that See also: TanajiRamchandraNimhan Vs. Swati VinayakNimhan: AIR 2006 SC 1218.

[24] 1995-5 SCC 347

[25] 2005 (1) CTC 399 : 2005 (2) MLJ 102. Referred to in TheniMelapettai Hindu NadarkalUravinmuraiVs. The District Registrar: 2007 6 MLJ 1528.

[26] Manish Kansal Vs. State of U P: LAWS(ALL)-2015-5-194

[27] A. S. Krishnan Vs. M. Sundaram: A. I. R. 1941 Bom. 312, See also: ShridharMisra Vs. Jaihandra, AIR 1959 All 598; SatyavartSidhantalankar Vs. AryaSamaj, Bombay, AIR 1946 Bom 516 ; NagappaVs. Madras Race Club, AIR 1951 Mad 831.

[28] 2005-1 CTC 399, (2005) 2 Mad LJ 102. See also: V. ArulkumarAndOrs. Vs. Tamil Nadu Government Nurses Association (Government Recognised): 2015-5 CTC 17: (2015) 5 Mad LJ 673.

[29] (1952) SCR 218; AIR 1952 SC 64.

[30] CharanLalSahu v. GianiZail Singh: AIR 1984 SC 309; Referred to in Mithilesh Kumar Sinha Kaka Joginder Singh Vs. Returning Officer for Presidential Election: DrShankerDayal Sharma: AIR1993 SC 20; P NallaThampyThera Vs. B L Shanker: AIR 1984 SC 135. Also See: SatyaNarain Vs. Dhuja Ram: AIR 1974 SC 1185; U S Sasidharan Vs. K Karunakaran: AIR1990 SC 924; JyotiBasu Vs. Debi Ghosal: AIR 1982 SC 983: Sukumarakurup Vs. District Judge: AIR 1998 Ker 332; Ram Shankar Chaudhary Vs. Rama Shankar Singh: 1978 JLJ 401.

[31] Sukumarakurup Vs. District Judge: AIR 1998 Ker 332

[32]AIR 2021 SC 217

[33]AIR 1980 SC 1612

[34] Ram Pal Singh Vs. State of U P: LAWS (ALL)-2015-5-99. Referred to: Ram PyareLal Vs. State of U.P. 2015 3 ADJ 577; Indian Sugar Mills Association Vs. Secretary to Government, UP: AIR 1951 All 1; Dr. PP Rastogi Vs. Meerut University, 1997 1 UPLBEC 415; Vimla Devi Vs. Deputy Director of Education, 1997-3 ESC 1807; 2010 (1) ADJ 262

[35] 2007-7 ADJ 414; 2007-3 All LR 14

[36] Referred to in SatyaNarainTripathiVs. State of U P: 2008 – 2 ADJ 222, 2008-71 ALLLR 698.

[37]Dr. P.P. Rastogi v. Meerut University, Meerut, 1997-1 UPLBEC 415; Smt. Vimla Devi v. The Deputy Director of Education, Agra Region, Agra, 1997-3 ESC 1807; BhagwanKaushik v. State of U.P., 2006-2 UPLBEC 1372; Amanullah Khan v. State of U.P. and others, 2009-75 All LR 29

[38]Kamla Kant Agrawal v. State of U.P., 2008-7 ADJ 601; Committee of Management, Janta Inter College, Sultanpur, District Haridwar v. Joint Director of Education, I Region, Meerut, 1999-1 UPLBEC 170;Ratan Kumar Solanki v. State of U.P., 2010-1 ADJ 262 (DB).

[39]2011-2 ADJ 65

[40] See: Laxman Singh Vs. State of UP, ADJ 2014 9 242, AWC 2014 5 4382, LBESR 2014 3 415

[41] Committee of Managt.AryaKanyaPathshala Inter College Vs. State of UP: 2011- 2 ADJ 65; Gopal Y Unkal Vs. Karnataka VidyaVardhakaSangha, Dharwad, Dist: KarCCR 2018 2 1880

[42] AIR 1965 Ker 68. Quoted in Rajeev Saumitra Vs. Neetu Singh: 2016-198 Comp Cases 359.

[43] 2016 3 UAD 656

[44]AIR 1995 SC 1344

[45] See: ShyamNarainShukla, Committee of Management Vs. State of UP: 1995-25 All LR 100; 1995-1 LBESR 174.

[46] Kurukshetra University Vs. Vinod Kumar: AIR 1977 Pj&Hr 21; Sarup Singh Vs. State of Punjab: 1990-1 LLJ 285. See with respect to statutory tribunal: AnnamalaiVs. R Doraiswamy: 1982 ACJ 371.

[47] Ramesh Kapur Vs. Punjab University: AIR 1965 Punj 120; Rakesh Kumar Vs. J & K State Board of School Education: AIR 1992 J&K 22.

[48] Enderby Town Football Club Ltd. Vs. Football Association Ltd. (1971 Chancery Div. 591)

[49] Quoted in J K Aggarwal Vs. Haryana Seeds Development Corporation: AIR 1991 SC 1221.

[50] AIR 1976 P & H 69.

[51] K V Vijayakumar Vs. Joint Registrar of Co Operative Societies: AIR 1996 Ker 150

[52] Pritam Singh Vs. S. Ranjit Singh: AIR 1965 Punjab 39.

[53] AIR 1995 SC 1344.

[54] (2011) 13 SCC 774

[55] (1954) SCR 892. Also See: JayantaSamal Vs. KulamaniBehera: 2004 13 SCC 552

[56] AIR 2016 SC 1094.

[57] AIR 1952 SC 64

[58] (1976) 3 SCC 211

[59] AIR 1978 SC 851.

[60] AIR 1996 SC 1595

[61] AIR 2001 SC 3982; Followed in AhmednagarZilla SDV P Sangh Vs. State of Maharashtra, (2004) 1 SCC 133

[62] (1996) 6 SCC 303

[63] AIR 2000 SC 2977

[64] 2008 (Supp.) O.L.R. 251

[65] 2015-3 Ker LT 299.

[66] AIR 2014 Mad 34

[67] (2006) 8 SCC 487.

[68] (1998) 8 SCC 703.

[69] (2004) 12 SCC 73; Also see: Harcharan Singh Vs. Mohinder Singh: AIR 1968 SC 1500; Mohinder Singh Gill Vs. The Chief Election Commissioner: AIR 1978 SC 851; JyotiBasu Vs. Debi Ghosal: AIR 1982 SC 983; HarikrishnaLal Vs. BauLalMarandi: 2003-8 SCC 613; Shyamdeo Pd. Singh Vs. Naval Kishore Yadav: 2000-8 SCC 46; Election Commission of India Vs. Ashok Kumar : AIR 2000 SC 2977

[70] AIR 1977 SC 1703.

[71] AIR 2016 SC 1094: Referred: Ponnuswami Vs. Returning Officer: AIR 1952 SC 64; ShriSantSadguruJanardan Swami Vs. State of Maharashtra: 2001 (8) SCC 509 Nanhoo Mal and others Vs. Hira Mal: 1976 (3) SCC 211.

[72] AIR 1977 SC 1703.

[73] See also: Abdul Latheef C.K. Vs. K.M. Haneefa: 2015-3 Ker LT 299.

[74] UP State Brassware Corporation Ltd. Vs. UdaiNarainPandey: AIR 2006 SC 586

[75] Manugobinda Vs. BrajabanduMisra – AIR 1986 Orissa 281

[76] Lavu Sri Krishna Rao Vs. Dr. MoturiNagendraRao: AIR 2007 A P 25

[77] Rameshwar Vs. Jot Ram: AIR 1976 SC 49

[78] PasupuletiVenkateswarlu Vs. The Motor & General Traders: AIR 1975 SC 1409.

[79]LAWS(KER) 2013 3 137

[80]Kalyan Kumar Gogoi Vs. AshutoshAgnihotri:AIR 2011 SC 760

[81] MdMajidHussain Vs. MdAqueel, AIR 2015 AP 21, that See also: TanajiRamchandraNimhan Vs. Swati VinayakNimhan: AIR 2006 SC 1218.

[82]1995-5 SCC 347

[83][1966]3 SCR 623

Referred to in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K S Gandhi: 1991 AIR-SCW 879.

[84] Shaji K. Joseph Vs. V. Viswanath AIR 2016 SC 1094

[85] In Re: T BalajiRao Naidu Garu Vs. State: AIR 1933 Mad 103 (PC).

[86] Daver Vs. Lodge Victoria No. 363 SC Belgaum, AIR 1963 SC 1144; ShridharMisraVs.JaichandraVidyalankar: AIR 1959 All 598.

[87] RaghubarDayalMisra Vs. Shankar Lal: AIR 1934 All 876.

[88] Kalyan Kumar Gogoi Vs. AshutoshAgnihotri:AIR 2011 SC 760. Referred to in:Ashok Vs. RajendraBhausahebMulak: 2012-12 SCC 27; Ravinder Kumar Rawal Vs. V.K. Sood: ILR 2011-2 P&H 704.See also: JaganNath Vs. Jaswant Singh (1954) SCR 892;JayantaSamal Vs. KulamaniBehera: 2004-13 SCC 552

[89] Saheed Sporting Club Vs. Kalyan Ray Choudhury : 2008 CLT Supp 338. AIR 1963 All 518 referred to.

[90] (2008) 11 SCC 740.

[91]Quoted in G.M. Siddeshwar Vs. Prasanna Kumar: AIR 2013 SC 1549.

[92] ChandrakantMahadevPatole Vs. State of Maharashtra: 2010 All MR 457

[93] Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585:

[94] V. Arulkumar Vs. TN Government Nurses Association: 2015-5 CTC 17

[95] Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra AIR 2001 SC 3982; Ahmednagar Zilla SDV. Vs. State of Maharashtra, 2004-1 SCC 133; Pundlik Vs. State of Maharashtra: AIR 2005 SC 3746; Dev Prakash Balmukund Vs .Babu Ram Rewti Mal: AIR 1961 Punj 429 referred to in Bar Council Of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612. Electoral Roll is a fundamental factor: DevassyVs. Asst. Regtr.: ILR 1976 (1) Ker. 95. See also: Ajmer Vs. RadheyShyamDani: AIR 1957 SC 304; Gopalan Vs. Joint Registrar of Cooperative Societies 1985 Ker LT 446; Joseph Vs. Kothamangalam Co-op. M. Society: 1994 (1) Ker LT 828. See Contra view Supreme Court Bar Association Vs. B.D. Kaushik: (2011) 13 SCC 774; Shri Sant SadguruJanardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982; Radheshyam Vs. Chairman, Sahakari Samiti, : AIR 1976 MP 156; Ram Swaroop, Dohare Vs. AyuktaSahkarita: AIR 1996 MP 187.[96] Umakant Singh Vs. Bindra Chaudhary AIR 1965 Pat 459; Referred to in Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612

[97] Manish Kansal Vs. State of U P: LAWS(ALL)-2015-5-194

[98] East Bengal Club Vs. Paltu Mukherjee : 2011-1 Cal HN 184

[99] Umakant Singh Vs. BindraChaudhary AIR 1965 Pat 459; Referred to in Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612. Also: ParmeshwarMahaseth Vs. State of Bihar, AIR 1958 Pat 149: Referred to in Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612.

[100] Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612.

[101] Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612

[102] 2011-1 Cal HN 184

[103] ILR 1989-2 Del 585

[104] MaksudanRaut Vs. State of Bihar: AIR 1983 Pat 186. Followed in SatyaNarain Singh Vs. State of Bihar: AIR 1984 Pat 26. See also: R. NanjundegowdaVs Revenue Secretary-Ii, Bangalore: AIR 2006-6 (Kar)(R) 523; NandParkashVohra Vs. State of H P: AIR 2000 HP 65.

[105] Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612; KangluBaulaKotwal Vs. Chief Executive Officer, JanpadSabha, Durg: AIR 1955 Nag 49; RamgulamShriBaijnath Prasad Vs. Collector, Guna, AIR 1975 MP 145 (Oza J.) referred to.

[106] AIR 1952 SC 64

[107] See: Supreme Court Bar Association Vs. B.D. Kaushik: (2011) 13 SCC 774; ShriSantSadguruJanardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982; Radheshyam Vs. Chairman, SahakariSamiti, : AIR 1976 MP 156; 2008 (4) MPLJ 353 (Ram Singh Vs. State of MP and others); Ram Swaroop, Dohare Vs. AyuktaSahkarita: AIR 1996 MP 187

[108] ShriSantSadguruJanardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982

[109] Laxman Singh Vs. State of U P: 2014 – 9 ADJ 242

[110] AIR 1957 SC 304

[111] Referred to in Bar Council Of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612

[112]AIR 1975 MP145 (Oza J.)

[113] AIR 2005 SC 3746

[114] AIR 1961 Punj 429; referred to in Bar Council Of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612. Electoral Roll is a fundamental factor: DevassyVs. Asst. Registrar of Cooperative Societies: ILR 1976 (1) Ker. 95.

[115] See also: Gopalan Vs. Joint Registrar of Cooperative Societies 1985 Ker LT 446; Joseph Vs. Kothamangalam Co-op. M. Society Ltd: 1994 (1) Ker LT 828

[116] AIR 1957 SC 304

[117] AIR 1980 SC 1612. Referred: Pundlik Vs. State of Maharashtra: AIR 1975 MP145; Bhupendra Kumar Jain Vs. Y. S. Dharmadhikari, AIR 1976 MP 110.

[118] 1999(2) ALD 319 (DB)

[119] AIR 1980 SC 1612

[120] Relied on in: Sanjeev Kumar and Vs. Registrar of Co-Operative Societies LAWS(DLH)-2015-8-175.

[121] 1982-2 Kant LJ 313

[122]AIR 1980 SC 1612

[123]DevassyVs. Asst. Registrar of Cooperative Societies: ILR 1976 (1) Ker. 95; Gopalan Vs. Joint Registrar of Cooperative Societies 1985 Ker LT 446; Joseph Vs. Kothamangalam Co-op. M. Society Ltd: 1994 (1) Ker LT 828).

[124] AIR 2004 SC 1329; followed in Pundlik Vs. State of Maharashtra: AIR 2005 SC 3746

[125] AIR 2001 SC 3982

[126] AP AboobakerMusaliarVs. Dist. Registrar (G), Kozhikode: (2004) 11 SCC 247.See also: CMZ Musliar Vs. Aboobacker: ILR 1998-2 Ker 76. GyanBhartiShikshaSadan Vs. State of Uttar Pradesh, 2014 5 ADJ 263

[127] See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs.

[128] NagriPrachariniSabha Vs. V^th Additional District and Sessions Judge, Varanasi: 1991 Supp (2) SCC 36

[129] ILR1988-1 Ker 429

[130] LAWS (KER)-2013-3-137

[131] 2015-5 CTC 17

[132] Committee of Management Vs. Commissioner, Kanpur Region: 2008 -1 AWC 695; 2008 -1 ADJ 706; 2008-70 All LR 368.

[133] AIR 1991 SC 413

[134] AIR 2007 SC 1337.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society/Trust

Rights & Liabilities of Members of Clubs and Societies

Saji Koduvath, Advocate

Synopsis

1. Definition of ‘Member’ & Right to Vote
2. State-Acts Empower Registrar to Call Elections
3. Membership in a Society, not a Fundamental Right
4. ‘Subscription in Arrears’: Afford Opportunity of Payment
5. Individual Membership Rights
6. Individual Can Maintain Cause of the Collective Body
7. Individual and Corporate Membership Rights
8. When Minority can File Suits Without Sanction of Majority
9. Exceptions to the rule in Foss Vs. Harbottle
9. No Personal Liability on Members & Gov. Body
10. Co-op: Society has Corporate Personality & Its Liability
11. Elected Representatives of a Church can Protect Property
12. No Taxing When Members Avail the Facilities
13. Admission of New Members
14. Instances When Court Interferes

Provisions of the Societies Registration Act, 1860:

15. Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
Disqualified members: But in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months

1. Definition of ‘Member’ & Right to Vote

Norms & Formation of Governing Body is Left to Bye Laws.

The definition of ‘Member’ in the Societies Registration Act, 1860 (in Sec.15) is not exhaustive, as it is ‘for the purposes of this Act’ alone. Therefore it is legitimate to say that the disqualifications specified in the second limb of Section 15 (restriction to vote; and not to count as a member, because of subscription-arrears) is confined[1] to the activities enjoined to the ‘members’ in the So. Registration Act: ie. to take part in the meeting to make bye laws (S. 9), amend the ‘purposes’ (S. 12), take decision to ‘amalgamate’ with another society (S.12), dissolution (S. 13), etc.

So. Regn. Act does not specifically deal with or direct ‘election’ of the governing body.[2] The mode and modalities of formation of the governing body is resolutely left, under Sec.16, to the ‘rules and regulations of the society’.

Sec.16 reads:

Governing body defined: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

It cannot be understated as an omission in the Act. Pointing out the fundamental right guaranteed (Article 19(1)(c) of the Constitution of India) to form associations, and that the bye laws bind the members as a contract, even if it can be argued that the founders of a society are free to make bye laws which provide for permanent governing body, without an election, it appears that such a society cannot be recognised under the Societies Registration Act in our country which values democratic principles as paramount. Bye laws of a society or a club is a contract amongst its members; and therefore, it must be reasonable.[3]

It is also possible to demonstrate that the right to vote can be conferred upon the life-members or honorary-members even in a registered society (who have not signed the roll/list of members or are in arrears). In Periyar Self-Respect Propaganda Institution Vs. State of Tamil Nadu[4] it is observed:

“By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the Charitable Society and certainly it cannot assume the colour of a fundamental right. Neither the Institution nor the Charitable Society, or the present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had already formed, they must be allowed to continue to have that set up and any disturbance thereof would amount to violation of the right to form an association guaranteed under Art. 19(1)(c). If at all, such a right could be characterized as a peripheral or concomitant right which may facilitate the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every association formed shall effectively achieve its objectives without interference by law. Neither the members nor the association of members could claim that they have a fundamental right to have office for life.”

2. State-Acts Empower Registrar to Call Meeting for Elections

Societies Registration Act, 1960 as amended by the State of UP empowers the Registrar to call a meeting of the General Body of a society for electing its office bearers. In such cases, it is legitimate to say that the Registrar has to resort the definition in the Act to determine the members entitled to attend the meeting and to vote.

3. Membership in a Society, not a Fundamental Right

It is settled law that no citizen has a fundamental right under Article 19(1)(c) of the Constitution of India to become a member of a society, though it is a Co-operative Society established under a statute.[5]

The Hindi Sahitya Sammelan Vs. Jagdish Swamp[6] is the authority for the proposition that the right to form an association enjoins with it a right to continue to be associated with it as well as to ensure that only those persons are admitted to the association whom they voluntarily admitted.

In Satya Narain Tripathi Vs. State of UP[7] it is observed as under

“But a right to form an association on the one hand and the right to be elected to an office of such association or to participate in the elections on the other hand have been held to be distinct rights and the latter can be claimed only in accordance with the provisions of the bye-laws of the association or under a statute while the former can be claimed also as a fundamental right.”

Vide 97^th Amendment to the Constitution of India[8] the right to form Co-operative Societies has been made a fundamental right. But the same would not alter the principle of membership in such societies; because, the right to form a Co-operative Society is different from the right to become a member therein which continues to be governed by the provisions of the Act, the Rules and the Bye laws.[9]

4. ‘Subscription in Arrears’

Affording Opportunity of Making Payment

Non-payment of subscription will not amount to relinquishment of membership, unless the person had been afforded a specific opportunity of making payment by calling upon him to pay the arrears or face the consequences. The Societies Registration Act does not provide for automatic expulsion or removal/termination of membership for non-payment of subscription fees.

While considering Section 2 (b) of the Karnataka Societies Registration Act (similar provision to Sec. 15 of the Societies Registration Act), the High Court of Karnataka (R.P. Sethi, G. Patri Basavana Goud JJ.), in Lingappa Police Patil Vs. Registrar of Societies[10] after referring to dictionary meaning of ‘resignation’ and various Supreme Court decisions[11] it is held as under:

“In view of what we have noted hereinabove, it cannot be said that mere non-payment of the subscription would amount to resignation within the meaning of Section 2 (b) of the Act. Non-payment of subscription would also not amount to relinquishment of membership, unless a person is afforded a specific opportunity of making payment by calling upon him to pay the arrears or face the consequences. The society may be justified and the respondents may prescribe any such rule which provides for affording an opportunity to the defaulting member to make the payment of the arrears of subscription and upon failure, without valid reasons, declare the defaulter to cease to be the member for the purposes of the Act and the Rules. A reference to the proviso to Sub-section (2) of Section 6 of the Act clearly indicates that save as otherwise provided by the Act, no rule or regulation of the society can exclude any member from being entitled to vote.”

In Lingappa Police Patil Vs. Registrar of Societies[12] it is also held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause[13] for not making the payment within a specified period appeared ‘to be very harsh’; and that ‘confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed’ to be incorporated in the bye laws. The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act.

5. Individual Membership Rights

(See Chapter: Individual Membership Rights)

With respect to the individual membership rights of a member of a society registered under the Societies Registration Act, the general principles governing the rights of an individual share holder or a member of a company would apply.[14]

Following are recognised by Courts as ‘individual membership rights’ in a company[15].

(i) Right to vote,
(ii) right to stand as a candidate as a director and
(iii) set-right illegal acts.

These rights can be asserted by a member in his personal capacity without the sanction of the majority or without impleading the company as a co-plaintiff or defendant.

In the often quoted decision, Nagappa Chettiar Vs. Madras Race Club[16] it is observed:

“A share-holder is entitled to institute a suit to enforce his individual rights against the Company such as his right to vote or his right to stand as a director of a company at an election ……….. It is open to a majority always to set right a thing which was done by the majority either illegally or irregularly if thing complained of was one which the majority of the company were entitled to do legally and was within the powers of the company, by calling a fresh meeting. That is the reason why in such cases the court refuses to interfere at the instance of a share-holder even in a representative action brought by him. If the majority, however, acts in an oppressive manner, it is not as if the minority are without a remedy. …… From this it follows that a share-holder or share-holders are entitled to bring an action:
- (1) In respect of matters which are ultra vires the company and which the majority of share-holders were incapable of sanctioning (See Burland Vs. Earl, 1902 AC 83);
- (2) Where the act complained of constitutes a fraud on the minority and
- (3) Where the action of the majority is illegal“.

6. Individual Can Maintain Cause of the Collective Body

7. Individual Membership Rights and Corporate Membership Rights

The Kerala High Court in Joseph Vs. Jos[18] observed as under:

“… There are two kinds of rights for a member of the company, one the individual membership right, and the other the corporate membership right. So far as the corporate membership rights are concerned, a shareholder can assert those rights only in conformity with the decision of the majority of the shareholders. An individual membership right is a right to maintain himself in full membership with all the rights and privileges appertaining to that status. …”

8. When Minority can File Suits Without Sanction of Majority

Exceptions to the rule in Foss Vs. Harbottle

See Chapter: How to Sue Societies & Clubs

9. Liability of So: No Personal Liability on Members & Gov. Body

See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs.

10. Co-op: Society has Corporate Personality; Liability It’s Own

Merely because of a person having been its president for some time will not be liable for payment of the dues of a Co-operative Society; because, a Co-operative Society registered under the Co-operative Societies Act is a legal entity invested with a corporate personality which makes it distinct and different from the various members constituting it. The liability of the society is its own and not that of its members or office bearers, and has to be met by the society itself.[19] It is held in State of Punjab Vs. Amolak Ram Kapoor[20] as under:

“Since the Board was a society registered under the Societies Registration Act and as per rules and regulations it could acquire and sell property, the recovery of arrears of sales tax imposed on the Board could only be recovered from the property of the Board and not from the members of the Board.”

Ninety Seventh Amendment of our Constitution provided constitutional status to the Co-operative Societies and it has brought out radical changes in the concept of Co-operative Societies. Democratic functioning and autonomy have now become the core constitutional values of a Co-operative Society.

11. Elected Representatives of a Church can Protect Property

In Latin Archdiocese of Trivandrum Vs. Seline Fernandez[21] the question came whether the plaintiffs were competent to represent the parish and claim rights against the third party defendants. The third parties (though were also parishioners of the very same Church), by the nature of the claim set up by them, as against the Church, with reference to the property, stood as rival claimants with the Church.

The court found that the suit having been initiated and prosecuted with the ultimate aim of protecting the Church property (as per the Canon Law Church property vests in the hands of the Bishop or the Vicar and clearly mandates a consent from either of these two personalities for initiating a litigation) the sanction of the ordinary was not necessary; and that the plaintiffs who were the elected representatives, entrusted with the administration of the Church, were competent to initiate civil proceedings before the Civil Court. And that under the Canon law, the temporal goods belong to the parish (which, by law, was a public juridic person) and every administrator was bound to protect the property of the Church with the diligence of a good house holder; and also that the plaintiffs, individually, being the parishioners of the Church, were competent to represent the ‘juridic person’.

The right of worshippers to file suits, for reliefs outside S. 92 CPC, is well accepted.[22] It has been clearly laid down by the Supreme Court in Deoki Nandan Vs. Murlidhar[23] that the worshippers have a ‘beneficial interest’ (not the ‘proprietary interest’ or interest pertaining to owners). A worshipper has his own right to institute a suit to protect his right to worship and for that purpose to protect the debuttar property and that he can do so in his personal capacity as worshipper and not as a next friend of the deity. [24] Even in matters where Indian Trusts Act applies, Section 63 of the Indian Trusts Act is not exhaustive of remedies available to a beneficiary. Where the trustee has improperly alienated trust property the beneficiary can sue third parties for more effective reliefs than those contemplated by Section 63.[25]

When the Shebait acted adversely to the interest of the idol and fails to take action to safeguard its interest, it was held by our Apex Court in Bishwanath Vs. Thakur Radha Ballabhji[26] that there was no justification for denying the right to a worshipper to file suit to seek appropriate reliefs. The Supreme Court observed that it had been held in a number of decisions[27] that worshippers may file a suit praying for possession of a property on behalf of an endowment. It was also observed that an idol was in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol could certainly be clothed with an ad hoc power of representation to protect its interest. In Ramchand Vs. Janki Ballabhji Maharaj[28] the Supreme Court held that a person, who has made large donations for the maintenance of the temple, has clearly a substantial interest to maintain a suit for possession of the temple and its property against the Pujari or Manager, on behalf of the deity to protect the property from mismanagement or misappropriation.

12. No Taxing When Members Avail the Facilities

In Commissioner of Income-tax Vs. Darjeeling Club Ltd.[29] a Division Bench of Calcutta High Court observed that there was a long line of decisions in which it had been held that supplies made by a club to its members or the facilities afforded by a club to its members for a price would not amount to business activity of the club, even though there might be surplus of revenue over expenditure and the surplus could not be taxed as business profits if the sales were confined to the members of the Club only. There cannot be any distinction, with respect to this matter, between a temporary member and an honorary member. Any surplus contribution will be held for the benefit of the members. The benefit of the surplus fund must go back to the members as a class.

Where facilities including accommodation is provided to the members through the instrumentality or agency of the Club, neither the Club is the landlord, nor the members – during their stay – are the tenants of the Club. The members by virtue of their membership are entitled to avail of the facilities of their Club (accommodation) according to its rules, as of right. What is paid by the members for their accommodation cannot be treated as rent and the income cannot be regarded as income from the house-property under the Income Tax Act.[30]

13. Admission of New Members

The bye laws of a Society or a Club prescribe the qualifications of the Members to be admitted. They are in the nature of contract between the members. Therefore the right of admission of new members also remains at the will and option of the members.[31] The State or an enactment cannot compel admission of members, contrary to the bye laws of a Society.[32] What is the ‘interest’ of the Society or a Club is to be determined by the society.[33]

14. Instances When Court Interferes

See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs.

15. Disqualification of Members

Section 21(1)(g) of the Telangana Co-operative Societies Act, 1964, provides that a person shall be disqualified for being a member if he fails to attend two consecutive annual General Body meetings without leave of absence. Proviso to sub-Section (3) of Section 21 states that “no member shall be removed under this sub-Section unless he had an opportunity of making a representation against the proposed action of removal and a copy of resolution removing the member shall be communicated to such person and on such communication, he shall be deemed to have ceased to be a member of the society”.

In Bollineni Ravindranath Vs. Sate of Telangana[34] the The High Court of Telangana held that exclusion of members of the society from the voters list of eligible voters for not attending two consecutive General Body meetings of the society was patently illegal. It was pointed out that there was no material to show that they followed the procedure in Section 21(3) proviso to disqualify any member who did not attend two consecutive Annual General Body meetings without leave of absence, by giving him an opportunity of being heard as mandated by the proviso thereto, and thereafter such member was removed by the General Body of the society.

In Arun Laxman Ashan Vs. Jeevan C Idnani[35] details furnished by respondents as to forming front were rejected on the ground that the same were not in accordance with the requirement under the rules. Though steps were taken by respondents within time limit, certain documents were not filed within the time limit. No opportunity was given to respondents to cure such defects. The Bombay High Court held that the provisions of Rule 5, directing time-limit to furnish (proper) application, was directory and not mandatory.

Whether the edict in a statute is mandatory or directory is to be determined with reference to the nature and circumstance in which it is given. In Pratap Singh Vs. Krishna Gupta[36] the Supreme Court has observed that some rules are vital and go to the root of the matter; that they cannot be broken; that others are only directory and breach of them can be overlooked provided there is substantial compliance with the Rules read as a whole and provided no prejudice ensues; and that it is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment is obeyed or fulfilled substantially. In Hari Vishnu Kamath Vs. Ahmad Ishaque[37] it is stated as under:

“It is well-established that an enactment in form mandatory might in substance be directory and that the use of the word shall does not conclude the matter. The question was examined in length in Lulius v. Bishop of Oxford (1880) 5 AC 214 and various Rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well-known and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the Legislature which is the determining factor and that must ultimately depend on the context.”

[1] See: Sec. 9-14, 17 and 20.

[2] But various States’ amendments (and State-Acts) provide for the same.

[3] Alty Vs. Farrell: (1896) 1 QB 638; Kruse Vs. Johnson: (1898) 2 QB 91, Scott Vs. Pilliner: (1904) 2 KB 855, Repton School Governors Vs. Repton Rural District Council:(1918) 2 KB 133; Chester Vs. Bateson: (1920) 1 KB 829; Attorney General Vs. Denhy: 1925 Ch 596: All referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[4] AIR 1988 Mad 27

[5] Zoroastrian Co -operative Housing society Ltd. Vs. District Registrar, Co -operative (Urban) AIR 2005 SC 2306; State of U.P. Vs. C.O.D. Chheoki Employees’ Co-op. Society Ltd : AIR 1997 SC 1413; Supreme Court Bar Association and Ors. Vs. B.D. Kaushik: (2011) 13 SCC 774.

[6] AIR 1971 SC 966

[7] 2008 – 2 ADJ 222, 2008-71 All LR 698

[8] Implemented with effect from 15^th February, 2012

[9] Lok Sevak Cooperative House Building Society Ltd. Vs. S.P. Goyal: 1997 (1) RCR(Civil) 14

[10] ILR 1997 Kar 3127

[11] J. K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of UP: AIR1990 SC 1808; Union of India Vs. Gopal Chandra Misra: AIR 1978 SC 694

[12] ILR 1997 Kar 3127

[13] Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585: AIR 1990 NOC 26(Del).

[14] Satyavart Sidhantalankar Vs. Arya Samaj, Bombay: AIR 1946 Bom 516; Nagappa Vs. Madras Race Club: AIR 1951 Mad 831; Shridhar Misra Vs. Jaihandra: AIR 1959 All 598.

[15] See also: CL Joseph Vs. Jos: AIR 1965 Ker 68; Star Tiles Works Vs. N. Govindan: AIR 1959 Ker 254

[16] AIR 1951 Mad 831

[17] Committee of Management Arya Kanya Pathshala Inter College Vs. State of U P: 2011- 2 ADJ 65.

[18] AIR 1965 Ker 68.

Quoted in: Rajeev Saumitra Vs. Neetu Singh: 2016-198 Comp Cases 359.

[19] Baby Mathew Vs. Agricultural Income Tax Officer: 1994-207 ITR 967: 1996-131 CTR 214: 1994 (1) KLT 786.

[20] [1990] 79 STC 315 (P & H); ILR1991- 2 (P&H) 218

[21] 2013(4) Ker LT 283.

[22] Vemareddi Ramaraghava Reddi Vs. Kondaru Seshu Reddi, AIR 1967 SC 436; Bhagauti Prasad Khetan Vs. Laxminathji Maharaj: AIR 1985 All 228. In this case distinguished (pointing out actual worship of the idol sans right to worship) Sri Thakur Krishna Chandramajiu Vs. Kanhayalal, AIR 1961 All 206. See also: Jangi Lal Vs. B. Panna Lal, AIR 1957 All 743; Behari Lal Vs. Thakur Radha Ballabhji, AIR 1961 All 73

[23] AIR 1957 SC 133

[24] Sri Ishwar Vs. Gopinath Das: AIR 1960 Cal 741: See also : Samit Pani Brahmachary Vs. Mayapur Chaitanya Math: AIR1999 Cal 132; Thakurji Maharaj Vs. Dankiya: AIR 1986 All 247.

[25] See: Janakirama Iyer Vs. Nilkanth Iyer: AIR 1962 SC 633

[26] AIR 1967 SC 1044.

[27] Radhabai Vs. Chimnaji: (1878) ILR 3 Bom 27, Zafaryab Ali Vs. Bakhtawar Singh: (1883) ILR 5 All 497; Chidambaranatha Thambirarn Vs. P. S. Nallasiva Mudaliar: AIR 1918 Mad 464, Dasondhay Vs. Muhammad Abu Nasar: AIR 1917 Mad 112 (FB), Radha Krishnaji Vs. Rameshwar Prasad Singh: AIR 1934 Pat 584; Manmohan Haldar Vs. Dibbendu Prosad Roy: AIR 1949 Cal 199. Following two decisions of the Privy Council were also referred to: Pramatha Nath Mullick Vs. Pradyumna Kumar Mullick: 52 Ind App 245: AIR 1925 PC 139 Kanhaiya Lal Vs. Hamid Ali: 60 Ind App 263: AIR 1933 PC 198 (1).

[28] AIR 1970 SC 532. See also Kt. N. Ram Thenappa Chettiar Vs. N. S. Kr. Karuppan Chettiar: AIR 1968 SC 915

[29] 1985 (153) ITR 676: Referred to in Saturday Club Vs. Asst. Commr. Service Tax: 2005-1 Cal LT 575.

[30] Saturday Club Vs. Asst. Commissioner Service Tax Cell Calcutta : 2005-1 Cal LT 575

[31] Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973

[32] Zoroastrian Co -operative Housing Society Ltd. Vs. District Registrar, Co -operative (Urban) AIR 2005 SC 2306.

[33] State of Maharashtra Vs. Karvenagaar Sahakari Griha (2000) 9 SCC 295: Zoroastrian Co -operative Housing Society Ltd. Vs. District Registrar, Co -operative (Urban) AIR 2005 SC 2306

[34] LAWS(TLNG) 2021 1 2

[35] 2018-5 MHLJ 59A

[36] AIR 1986 SC 140

[37] AIR 1955 SC 233

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

How to Sue Societies, Clubs and Companies

Saji Koduvath, Advocate.

Synopsis

1. Provisions of the Societies Registration Act, 1860
2. How to Sue an Unregistered Society or a Club
3. Decision Binds all Represented
4. Virtually Suit By or Against Entire Members
7. How Sec. 6 is an Enabling Provision
8. Suit shall be in the Name of President, Chairman
9. Our Law Does Not Favour ‘Corporation Sole’
10. Sec. 6 Impliedly Bars Filing a Suit in the Name of Society
11. When Society need not be Necessary Party?
12. Is Society, a Necessary Party?
13. Personal Liability of Members and Governing Body
14. Sec. 6 is Not Strictly Followed by our Courts
15. Notice to a Society, Notice to all Members

Provisions of the Societies Registration Act, 1860:

“6. Suits by and against societies – Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.
- Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.
7. Suits not to abate -No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit proceedings shall be continued in the name of or against the successor of such person.
8. Enforcement of judgment against society – If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society.
9. Recovery of penalty accruing under bye laws – Whenever by any bye laws duly made in accordance with the rules and regulations of the society, or, if the rules do not provide for the making of bye laws, by any bye laws made at a general meeting of the members of the society convened for the purpose (for the making of which the concurrent votes of three-fifths of the members present at such meeting shall be necessary), any pecuniary penalty is imposed for the breach of any rule or bye laws of the society, such penalty, when accrued, may be recovered in any court having jurisdiction where the defendant shall reside, or the society shall be situate, as the governing body thereof shall deem expedient.
10. Members liable to be sued as strangers – Any member who may be in arrear of a subscription which according to the rules of the society he is bound to pay, or who shall possess himself of or detain any property of the society in a manner or for a time contrary to such rules, or shall injure or destroy any property of the society, may be sued for such arrear or for the damage accruing from such detention, injury, or destruction of the property in the manner hereinbefore provided.
Recovery by successful defendant of costs adjudged – But if the defendant shall be successful in any suit or other proceedings brought against him at the instance of the society, and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought, or from the society, and in the latter case shall have process against the property of the said society in the manner above described.
11. Members guilty of offences punishable as strangers – Any member of the society who shall steal, purloin, or embezzle any money or other property, or willfully, and maliciously destroy or injure any property of such society, or shall forge and deed, bond, security for money, receipt, or other instrument, whereby the funds of the society may be exposed to loss, shall be subject to the same prosecution, and, if convicted, shall be liable to be punished in like manner, as any person not a member would be subject and liable to in respect of the like offence.”

Introduction:

Societies, Clubs and Companies are formed by the teamwork and co-operation of the people associated with them, at its beginning.

A Company is a Juristic person. Hence it can sue or be sued in its name.
Proceedings in a suit by or against a registered society is different from that of an unregistered society or a club.

How to Sue an Unregistered Society or a Club

An unregistered society or a club is not a legal person;[1]and therefore, it has to sue or be sued only in the names of all its members. It can be done invoking Order I Rule 8 CPC which enables the society to sue, or be sued, in a representative character.

When a suit is filed by a member seeking reliefs concerning the society or a club, relating to a matter common to all members, he has to file it (also) as representing other members of the society, other than the defendants (usually office-bearers); and if it is a personal matter of the plaintiff, seeking relief against all other members, the plaintiff has to sue against one or two members (usually office-bearers) as representatives of others.

Objective of Order I Rule 8 CPC and Manner of its Publication

The objective of Order I Rule 8 CPC, which is an enabling provision, is avoidance of multiplicity in litigation; and the decision in such a suit binds both present and future members.[2] Such a suit can be proceeded with even where the person sought to be made a representative refuses to do so.

In Sukadev Tapaswai v. Sri Sidheswar Mahadev Bija Silod[3] it is pointed out that Order I Rule 8 CPC ‘notice of the institution of the suit’ should include the names of the persons who have been permitted to represent others, so that the persons interested may have an opportunity of knowing who have been selected to represent them.

Decision Binds all Represented, and Constitutes Res Judicata

To bring an action under Order I Rule 8 CPC, the persons on whose behalf the suit is brought must have the same interest. The decision in such a representative suit will bind all the persons sought to be represented; and it will constitute res judicata, under Section 11, CPC.[4]

Registration does not Confer Juristic Personality

Registration of Societies under the Central or State Societies Registration Act does not give the society a corporate status.[5] In Illachi Devi Vs. Jain Society Protection of Orphans India[6] it is held by our Apex Court as under:

i) The mere fact of registration will not make a society distinct from association of persons. (Para 20)
ii) A Society registered under the Societies Registration Act is not a body-corporate as is the case in respect of a company registered under the Companies Act. In that view of the matter, a Society registered under the Societies Registration Act is not a juristic person. (Para 21)
iii) A society, whether registered or unregistered, may not be prosecuted in criminal court, nor is it capable of ownership of any property or of suing or being sued in its own name. (Para 22) Vesting of property does not take place in the Society. Similarly, the society cannot sue or be sued. It must sue or be sued through a person nominated in that behalf. (Para 26)

‘Suit By or Against a Regd. So.’ is Virtually Suit By or Against Entire Members

A society or a club, both registered and unregistered, is the compendium of its members. When it sues or is sued all its members should be made parties. As shown above, registration of Societies under the Central or State Societies Registration Act does not give the society a corporate status. [7]

Expressions in the Societies Registration Act, ‘property belonging to a society’[8] and ‘property of the society’,[9] do not give the society a corporate status; and it “merely describes the property which vests in trustees or Governing Body”.[10]

Following the above propositions, it can be legitimately concluded that the common expression, ‘suit by or against a society’, legally and virtually denotes suit by or against its entire members.

How Sec. 6 is an Enabling Provision

The earlier view taken by various courts in India was that the registered societies were legal persons and they could sue or be sued in their own name;[11] and that Sec. 6 was only an enabling (or added) provision to sue or be sued ‘in the name of the president, secretary’, etc. This view does not hold good in the light of Unani Tibia College case[12]and Illachi Devi case.[13]

Suing entire members of the society, either in person or invoking Order I Rule 8 CPC, is the normal rule. But, Sec. 6 enables to sue (or be sued) every registered society (i.e., all its members) in the name of its president, secretary, etc., as shall be determined by the rules and regulations of the society (or through such person as shall be appointed by the governing body for the occasion).

Suit shall be in the Personal Name of President, Chairman, etc.

From the expression in Sec. 7 of the Societies Registration Act, that ‘proceedings shall be continued in the name of or against the successor of such person’, it is clear that the words in Sec. 6 of the Societies Registration Act, ‘sue or be sued in the name of President, Chairman, or Principal Secretary, or Trustees,’ refers to filing suit by or against the President, Chairman, Principal Secretary or Trustees in their ‘personal name’; and not in their ‘official status’ “as” President, Chairman, Principal Secretary or Trustees.

Person who Signs Pleadings must be Authorised by the Byelaws

The Supreme Court, in P. Nazeer Vs. Salafi Trust, AIR 2022 SC 1580, held:

(i) A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its byelaws.
(ii) The byelaws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society,
- since section 6 of the Societies Registration Act, provides that ‘every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and,
- in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion’.
(iii) Unless the plaintiff, which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the byelaws to do so, the suit cannot be entertained
- The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit affiliated to a registered society is of no consequence, unless the byelaws support the institution of such a suit.

Suits by a Company

Proper authorisation is essential for signing a plaint on behalf of a Company. Though, the Secretary or any Director or other Principal officer can sign pleadings by virtue of their office, as per Order 29 Rule 1 of the CPC, the view taken in some decisions was that neither the directors nor the managing director would have the right to represent the Company, in a suit unless they were duly authorised by a resolution taken by the Board of Directors at a meeting duly constituted for the said purpose.[14]

The Delhi High Court, in Nibro Limited Vs. National Insurance Company Ltd. (1991),[15] it is observed, with regard to the source of power of the Directors, as under:

“25. It is well-settled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting-in all others cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.”

It was observed by in Nibro Limited that a director or a secretary of a Company could certainly give the authority to institute a suit to another person, as provided under Order III Rule 1 CPC, if the director or secretary was authorised by law to file a suit on behalf of the company.

Order III Rule 1 provides that ‘any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. Provided, that any such appearance shall, if the Court so directs, be made by the party in person’.

If an authority is given to a pleader or a recognised agent, under Order III Rule 1, that recognised agent or pleader can, certainly, file an appearance as authorised.

The Bombay High Court, in Alcon Electronics Pvt. Ltd Vs. Celem (2015),[16] observed, with respect to the source of power of the Directors, as under:

“The essential requirement of this provision is that the Company which is a juristic person must itself decide to sue. Once that is done, it would authorise one of its Directors who is the agent of the Company or its principal officers the Secretary of the Company or the Managing Director to file the Suit. The suing in each case is a separate act. The Company acts only through its meetings. Hence the Board of Directors in the day to day management of the company must decide and resolve to sue or not to sue. A blanket authority cannot be given to a particular Managing Director or Director to sign the papers and document/s, including the power to sue. The power to sue requires application of mind upon the particular cause of action. It requires the Company to pay the requisite Court fee. It requires the Company to be represented by a legal officer being an Advocate of the Court. It is an act which, therefore, is not a part of the day to day management of the Company. A Company would decide in a given case upon legal advice or otherwise whether or not it would sue upon a given cause of action. Such exercise is imperatively required to be performed if the intention of the Company, which is only a juristic person, is to be deciphered. That act, of course, may be undertaken even after the filing of the Suit and ratified by the Board as all other acts of management. However, the seminal requirement is to see the act of the Company though its Board or members (dependent upon whether the resolution is passed in the Board meeting or a general meeting) or is given by the Company itself (under its Articles of Association).”

The Delhi High Court pointed out in Radico Khaitan Limited Vs. JD Wines (2020),[17] that the impropriety, if any, in signing the pleadings by the officers of a Company can be ratified.

It is held in Bhupesh Rathod v. Dayashankar Prasad Chaurasia[18] (in a Sec. 138, NI Act – criminal – proceedings) that there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company; and that the format itself cannot be said to be defective though it may not be perfect (The Apex Court followed: Associated Cement Co. Ltd. v. Keshavanand, (1998-1 SCC 687).

Locus Standi of a Member to Challenge Election

In Tej Bahadur vs Shri Narendra Modi[19] the Apex Court considered the question of the validity of the appellant’s nomination since that had a direct bearing on the question whether he had a right to question the election. After finding that the appellant was not a duly nominated candidate, it is held as under:

“We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.”

The Apex Court held in Bar Council of Delhi Vs. Surjeet Singh[20]:

A voter could challenge the election.
Merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case.
A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that account.

A member of a Society does not have the right to challenge Election unless his rights are personally affected by the impugned action.[21] He should have been a candidate or acquired the right to vote.

In Committee of Management, Sri Kachcha Baba inter College, Varanasi Vs. Regional Committee, PanchamMandal[22] it was held that a group of members of the General Body (and not by a rival committee of management) had no locus standi to challenge the result of the elections.[23]

There were divergent views, in UP, on the right of an individual member to file a writ petition. In certain cases[24] it was held that an individual member had no right to file the writ petition. The other set of decisions[25] observed that the writ petition could be maintained, subject to the existence of efficacious alternative remedy, when there was a breach of right of a person affecting his right to form an association, which was a fundamental right under Article 19(1)(c) of the Constitution, or there was a breach of the Statute. Both the divergent views had been considered by a Division Bench in Committee of Management, Arya Kanya Pathshala Inter College, Bulandshahar v. State of U.P.[26] The Division Bench observed as under:

“There is no such proposition that an individual member cannot, in no circumstance, challenge the election of the Committee of Management….. It is clear that the question as to whether an individual member has locus to challenge the election of Committee of Management depends on facts of each case…..”[27]

Right of an individual member to Challenge

In Jagdambika Prasad Pandey Vs. State of UP[28] it is held that where an individual is aggrieved by an action of Authorities, such individual has the right to approach the Court in writ jurisdiction. It is observed as under:

“33. With regard to the arguments regarding maintainability of the writ petition on behalf of the petitioners, this Court has perused the judgment rendered by the Division Bench in Ratan Kumar Solanki Vs. State of U.P. and Others reported in 2010 (1) ADJ 262. This Court finds that after considering two Division Bench judgments rendered in Dr. P.P. Rastogi Vs. Meerut University and Others reported in 1997 (1) U.P.LBEC 415 and Umesh Chandra Vs. Mahila Vidyalaya and others, 2019 (8) ADJ 536, as well as two Single Judges’ decisions in Smt. Vimla Devi Vs. Dy. Director of Education, Agra Region, Agra, reported in 1997 (3) ACC 1807 and Bhagwati Vs. State of U.P. and Others reported in 2006 (2) ADJ 361; the Division Bench observed that a writ petition at the instance of an individual member of the Society would be maintainable, since, recognition of illegally constituted committee affects the democratic rights of the individual Member of the Society and his Fundamental Right to form an association. The Division Bench observed that no doubt it is true that an individual Member cannot represent the Committee of Management and challenge the order or action of any Authorities whereby the Committee of Management is allegedly affected and if an action or order affects the Committee of Management, the Collective Body, the Body itself can challenge the same or may authorize an individual to represent it and to challenge such an action or order of the Authorities. However, where the individual is aggrieved by an action of the Authorities, such individual has locus-standi, to approach this Court in Writ jurisdiction.” [29]

Review by members

In Dr. PP Rastogi Vs. Meerut University[30] it was observed that an individual member of a Committee of Management had no locus standi to file Review Petition and it was only the Committee of Management alone which could appear as a party in the case; and that to permit individual members of the Committee of Management to appear would create a lot of problems because any individual member or several members may file applications at any time through his/their own separate counsel, would result in confusion.

Procedural Defects Should Not Defeat a Just Cause

It is trite law that one should not be non-suited for technical reasons, and that the procedural defects or procedural irregularities which are curable, or which do not go to the root of the matter, should not be permitted to defeat a just cause.[31] It is pointed out in United Bank of India Vs. Naresh Kumar[32] by our Apex Court that there is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case.

Suit in the name of ‘wrong’ plaintiff, out of inadvertent mistake – Effect

In Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186, original Plaintiff has filed the suit as Director of a Private Limited Company. Supreme Court [after referring State of Maharashtra v. Hindustan Construction Company Limited Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 and Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75], permitted the Private Limited Company to correct the mistake (and allowed to continue the suit as Plaintiff) – finding that the director had filed the suit, as plaintiff, out of an inadvertent mistake.

In State of Maharashtra v. Hindustan Construction Company Limited, (2010) 4 SCC 518, Supreme Court held as under:-

“17. Insofar as the Code of Civil Procedure, 1908 (for short “CPC”) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 (CA) – an appeal that came up before the Court of Appeal, Brett M.R. stated:
“… The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….”

In Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 our Apex Court held as under:

“5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.”
“7. …The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.”

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, our Apex Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-

“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
.(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”

Supreme Court Expanded Powers of Authorities of Companies in Filing Pleadings

Order 6 Rule 14 read with Order 29 Rule 1 CPC

Under Order 29 Rule 1 of the CPC, Secretary or any Director or other Principal Officer can sign pleadings by virtue of his office. A Company being a juristic entity, Board of Directors can authorise any person to sign pleadings, by passing a resolution or giving a power of attorney, by virtue of Order 6 Rule 14 read with Order 29 Rule 1 CPC. If pleadings have been signed by one of its officers, the Company can ratify it. Such ratification can be express or implied.

In Parmeshwari Prasad Gupta Versus Union of India[33] it is held by Our Apex Court that the ratification would relate back to the date of the act ratified.

It is held by our Apex Court in the aforesaid decision of Naresh Kumar (1997)[34] that a Court can, after taking all the circumstances of the case, come to the conclusion that the Company must have ratified the act of signing the pleading. It is pointed out that the courts below must have, in any case, directed the company to produce a proper power of attorney, or they must have allowed a competent person to be examined to prove the apparent ratification. The Court’s own words in United Bank of India Vs. Naresh Kumar (1997)[35] read as under:

“10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement or its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.”

In a subsequent decision, in State Bank of Travancore Vs. Kingston Computers (2011)[36] it is held by our Apex Court as under:

“14. In our view, the judgment under challenge is liable to be set aside because the Respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the Appellant and authorized Shri Ashok K. Shukla to do so. The letter of authority issued by Shri Raj K. Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K. Shukla to authorise another person to file suit on behalf of the company.”

In this decision (of Kingston Computers) there had neem no scope to ponder on the doctrines as to ‘technical or procedural defects’ as done in the earlier decision in Naresh Kumar (1997).[37] The decision, in Kingston Computers may be distinguishable from Naresh Kumar on the ground that there was no evidence in Kingston Computers to show that the signatory was a Director of the Company, and no resolution of the Board of Directors was produced to prove that the signatory was authorised to file the suit.

Effect of Complaint in the (Personal) name followed by ‘MD‘

In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (2022) 2 SCC 355, in a Criminal Complaint under Sec. 138 of the NI Act, (personal) name of the Managing Director was stated first; followed by official status, ‘Managing Director’ (he held in the Company). An affidavit was filed by the Managing Director stating that the Company had authorised him to file the complaint. A copy of the Board Resolution was also presented. In the body of the complaint it was not stated that he was the MD. The respondent contended that the complaint was filed in the personal capacity not on behalf of the Company. The Supreme Court held as under:

“The body of the complaint need not be required to contain anything more in view of what has been set out at the inception coupled with the copy of the Board Resolution.”
“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

Our Apex Court explained that a Manager or a Managing Director ordinarily by the very nomenclature can be taken to be the person in-charge of the affairs Company for its day-to-day management and within the activity would certainly be calling the act of approaching the court either under civil law or criminal law for setting the trial in motion.

Any Authorised Person Can Continue the proceedings for the Company

In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (supra) held further as under:

“If a complaint was made in the name of the Company, it is necessary that a natural person represents such juristic person in the court and the court looks upon the natural person for all practical purposes. It is in this context that observations were made that the body corporate is a de jure complainant while the human being is a de facto complainant to represent the former in the court proceedings. Thus, no Magistrate could insist that the particular person whose statement was taken on oath alone can continue to represent the Company till the end of the proceedings.”

Even if Initially No Authority, the Company Can Rectify the Defect

In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (supra) held further:

“Not only that, even if there was initially no authority the Company can at any stage rectify that defect by sending a competent person.”

Our Law Does Not Favour ‘Corporation Sole’

Our law does not favour characterising a ‘Corporation Sole’ as a Juristic Person,[38] except officials such as President of India, District Collectors, Secretaries/Office-Heads of various Departments of Government, Village Officers, etc.

But, under the specific provision in Order XXX, rule 7 CPC, read with Order XXI rule 50 (1)(b) CPC, it appears that ‘a person having the control or management of the partnership business’ can appear before the court otherwise than “in his own name” (that is, in the official capacity in the firm).

Order XXX, rule 7 CPC postulates as under:

“No appearance except by partners: Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.”

Order XXI rule 50 (1)(b) CPC posits as under:

“(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner.”

Sec. 6 Impliedly Bars Filing a Suit in the Name of Society

As already stated, our Apex Court has repeatedly[39]made it clear that Sec. 6 of the Societies Registration Act provides that a registered society must sue or be sued through the office bearer or a nominee, as provided in that section. Therefore, it can be concluded that Sec. 6 impliedly bars filing a suit in the name of the society, otherwise than through its President, Secretary or the nominated person.

When Society (or All Its Members) need not be Necessary Party?

Suit to protect or recover property.

As held by the Privy Council in Jagadinadra Nath Vs. Hemanta Kumari Debi[40] and our Apex Court in Vemareddi Ramaraghava ReddiVs. Kondaru Seshu Reddi,[41] Shebait of a temple has the authority to institute a suit in his own name to protect and recover property belonging to the deity.[42] By various authoritative decisions, it is made clear that when the trust is admitted, or where the right or title over the property is not in dispute, the deity will not be a necessary party, in suits for protection of the property and the rights of the trust.[43] Same is the case for framing a scheme.[44]In Monindra Mohan Vs. Shamnagar Jute Factory[45] a Division Bench held that the deity is not a necessary party in a suit filed on behalf of the Hindu public for declaration that the land in question was a debasthan of the idol and that it is a public place of warship.

It is appropriate to import this analogy to matters of societies also. Where the right or title over the property is not in dispute, and the suit is filed by a person who is bound to protect the property of a society, it can be concluded that the suit is not liable to be dismissed holding that the society as such (that is, all its members) is a necessary party. The ‘necessary party’ is not defined in the Code of Civil Procedure. But from the judicial dicta it may be laid down that there are two tests. Firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and secondly it will not be possible to pass an effective decree in the absence of such a party.[46]

It is observed in Latin Archdiocese of Trivandrum Vs. Seline Fernandez[47] that, though, as per the Canon Law the church property vests in the hands of the Bishop or the Vicar, the parish being by law a public juridic person, and the plaintiffs (the elected representatives of the parishioners entrusted with the administration of the church) were entitled to represent the juridic person, the plaintiffs were competent to initiate civil proceedings (with the ultimate aim of protecting the property belonging to the church) before a Civil Court.

Is Society, a Necessary Party?

Kania, J., in AS Krishnan Vs. M. Sundaram,[48] laid down (earlier view) as under:

“In my opinion as the position of the members of this society is similar to that of the share holders of the company and as the acts of the defendants which are challenged are in respect of the society it is necessary that the society should be a party to this litigation. I do not think it is competent to the plaintiff either alone or representing himself and the other members of the society other than defendants to bring a suit. …… In the absence of the society as a party to this litigation, I am of opinion that the suit as framed is not maintainable and the Court has no jurisdiction to try the suit in the absence of the society.”

Since it is unequivocally held by our Apex Court in Illachi Devi case[49] that a society cannot sue or be sued in its name, it is peremptory that the suit by or against a society should be brought as provided under Sec. 6 of the So. Regn. Act.

As regards the internal management of the society, whether the society as such, and not its individual members, has to sue is considered in Ram Charan Agarwala Vs. Shridhar Misra.[50] It was held as under:

“There have been a large number of cases both in India as also in England where courts has to consider whether a suit can be brought in respect of the internal management of a company otherwise than in the name of the company itself, by individual members thereof. There is good authority for the proposition that the case of society registered under the Act is similar to that of a club or a joint-stock company, (See A. S. Krishnan v. M. Sundaram, AIR 1941 Bom 312). A Full Bench of this Court in the case of 1947 All LJ 637 (AIR 1948 All 146) (supra), has held that the same principles apply to a club which applied to a joint-stock company. In the leading case on the subject Foss v. Harbottle (1843) 2 Hare 461, it was held that the normal rule is that the corporation should sue in its own name and in its corporate character, or in the name of some one whom the law has appointed to be its representative. Mozley v. Alston, (1847) 16 LJ Ch 217, is an authority for the proposition that ordinarily individual share-holders cannot sustain a Bill in their own names in respect of a matter common to all or relating to the internal management of the company. In the case of Mac Doughall v. Gardiner (1875) 1 Ch D 13, the Court held that it could not interfere in the internal management of a company and dismissed an action brought by one Share-holder on behalf of himself and all other share-holders excluding the Directors, against the Directors and the company complaining against certain matters decided at a meeting. To the same effect is the decision of the Bombay High Court in Bhajekar v. Shinkar, AIR 1934 Bom 243 and of the Madras High Court in Nagappa v. Madras Race Club, AIR 1951 Mad 831. The Bombay High Court took the same view in S. Sidhantalankar v. Arya Samaj Bombay, AIR 1946 Bom 516, which was a case of a registered society. This general rule however has got an exception as pointed out in the Madras and Bombay cases referred to above. The exception is that a share-holder can bring an action even with regard to an internal management of a company if (1) the action of the majority is ultra vires the company; (2) where the act complained of constitutes a fraud on the minority; (3) where the action of the majority is illegal and (4) where a special resolution is required by the Article of the Company and the assent of the majority to such special resolution is obtained by a trick, or even where a Company authorised to do a particular thing only by a special resolution does it without a special resolution duly passed.”

Sec. 6 is Not Strictly Followed by our Courts

If Sec. 6 is strictly followed:

no suit can be filed the name of the society (even if it is a registered one);
in the absence of provisions in the bye-laws empowering the president/ secretary or anybody else to file a suit or writ-petition,and in the absence of due appointment by resolution by the General/Governing Body, the suit or writ-petition filed by the president/secretary or anybody else would not be maintainable;[51]
if the rules and regulations of the society do not determine the person against whom a suit is to be filed, any person having a claim or demand against a society can sue the president, secretary or the trustees thereof (in their name), only if in-spite-of-an-application to the governing body, some other officer or person is not nominated (to be the defendant); and
a general statement in the bylaw[52]authorising an office-bearer to ‘represent the society in any legal proceeding’ does not enable him to file a suit on behalf of the society; because, this provision, in the bye laws, would only authorise such office bearer to represent the society in a properly instituted suit; and the authority to file a suit is quite different from the authority to represent the society in a suit which has been validly instituted.

Doctrine of Substantial Representation

It is noteworthy that the diktats in Sec. 6 are not invariably followed by our courts; but, adopted the doctrine of ‘substantial representation’.[53] In Singhai Lal Chand Jain Vs. Rashtriya Swayamsewak Sangh, Panna[54] our Apex Court observed as under, with respect to an unregistered association, Rashtriya Swayam-sewak Sangh (RSS):[55]

“Procedure is the handmaid to the substantive justice. …. It is true that no permission of the Court was taken to be sued in a representative capacity by or on behalf of the Sangh. But Clause (b) of Order 1, Rule 8 indicates that it may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested. Clause (b) clearly applies to the facts in this case. The President of the Sangh, the Manager of the Sangh and a Member have duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh.”

In this decision the following passage from Surayya Begum Vs. Mohd. Usman[56] was quoted:

“The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not unknown. A karta of a Joint Hindu Family has always been recognised as a representative of the other members of the Joint Hindu Family, and so has been a trustee. In cases where the provisions of Order 1, Rule 8 of the Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure: ‘Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating’.”

Notice to a Society, Notice to all Members

The notice to a Co-operative Society will be deemed as notice to all its members. In Daman Singh Vs. State of Punjab and Haryana[57] it is pointed out by our Apex Court, with respect to a Co-operative Society, that S. 13(9)(a) provides for the issue of notice to the societies and not to individual members and that S. 13(9)(b), however, gives the members an opportunity to be heard.

It is legitimate to maintain that,in appropriate cases, it may be proper to extend these principles as to service of notice,to both registered and unregistered societies,and a club also, with regard tothe matters-touching-rights-or-duties of the society ‘as a body’; for example, notice as to nonpayment of tax or revenue.The notice to the society or a proper office bearer will be deemed as notice to all its members.

Book No. 3: Common Law of CLUBS and SOCIETIES in India

[1] Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458; Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.

[2] TN Housing Board Vs. TN Ganapathy, (1990) 1 SCC 608: AIR 1990 SC 642; Jamiat Ulama Vs. Maulana Mahmood Asad Madni: ILR 2008-17 Dlh 1950

[3] AIR 1986 Ori 100; Anang Pal Vs. UOI: 2010-1 CivCC 168, 2009-164 DLT 10; Veerabhadrappa Dandappa Hanchinamani Vs. Nannesab Goususab Pathan: 2006-5 AIR KarR 354,CIVCC 2007 1 147; Jogiram Mohapatra Vs. Sibaram Pradhan: 2005-1 Ori LR 612; K. Devi Vs. Laishram Ningol Leinambi Devi: 1995-3 GauLT 367.

[4] Mahboob Sahab Vs. Syed Ismail: AIR1995 SC 1205; T N Housing Board Vs. T N Ganapathy, (1990) 1 SCC 608: AIR 1990 SC 642; Venugopala Naidu Vs. Venkatarayulu: (1989) Supp 2 SCC 3 56: AIR 1990 SC 444. Ahmed Adam SaitVs. M. E. Makhri AIR 1964 SC 107. Arumughathan Vs. S Muthusami Naidu: 1993-1 CivCC 79: 1992-1 Mad LJ 532

[5] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458.

[6] AIR2003 SC 3397

[7] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458. Illachi Devi Vs. Jain Society Protection of Orphans India: AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.

[8] Societies Registration Act: Sec. 5

[9] Societies Registration Act: Sec. 8 and 10

[10] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458

[11] Shanti Sarup Vs. RadhaswamiSatsangSabha, Dayalbagh Agra: AIR 1969 All. 248; K.C. Thomas Vs. R.B. Gadaook, AIR 1970 Pat 163; Khiri Ram Gupta and Another versus Nana Lal: AIR 1964 Pat. 114, SatyavartSidhantalankar Vs. AryaSamaj, Bombay : AIR 1946 Bom. 516; NabadwipBhajanAsram Vs. Commissioner of Nabadwip Municipality : AIR 1959 Cal 361; Sonar Bangala Bank Vs. Calcutta Engineering College: AIR 1960 Cal 409.

[12] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458.

[13] Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.

[14]B. MookerjeeVs State Bank of India: AIR1992 Cal 250; Nibro Limited Vs National Insurance Co: AIR 1991 Del 25

[15]AIR 1991 Delhi 25: Quoted in: United India Periodicals Pvt. Ltd. Vs. CMYK Printech Ltd. : 2018-248 DLT 227

[16]2015-1MhL852

[17]2020-2 AD(Del) 421.

[18] 2022-2 SCC 355

[19] AIR 2021 SC 217

[20] AIR 1980 SC 1612

[21] Ram Pal Singh Vs. State of U P: LAWS (ALL)-2015-5-99. Referred to: Ram PyareLal Vs. State of U.P. 2015 3 ADJ 577; Indian Sugar Mills Association Vs. Secretary to Government, UP: AIR 1951 All 1; Dr. PP Rastogi Vs. Meerut University, 1997 1 UPLBEC 415; Vimla Devi Vs. Deputy Director of Education, 1997-3 ESC 1807; 2010 (1) ADJ 262

[22] 2007-7 ADJ 414; 2007-3 All LR 14

[23] Referred to in SatyaNarainTripathi Vs. State of U P: 2008 – 2 ADJ 222, 2008-71 ALLLR 698.

[24] Dr. P.P. Rastogi v. Meerut University, Meerut, 1997-1 UPLBEC 415; Smt. Vimla Devi v. The Deputy Director of Education, Agra Region, Agra, 1997-3 ESC 1807; Bhagwan Kaushik v. State of U.P., 2006-2 UPLBEC 1372; Amanullah Khan v. State of U.P. and others, 2009-75 All LR 29

[25] Kamla Kant Agrawal v. State of U.P., 2008-7 ADJ 601; Committee of Management, Janta Inter College, Sultanpur, District Haridwar v. Joint Director of Education, I Region, Meerut, 1999-1 UPLBEC 170; Ratan Kumar Solanki v. State of U.P., 2010-1 ADJ 262 (DB).

[26] 2011-2 ADJ 65

[27] See: Laxman Singh Vs. State of UP, ADJ 2014 9 242, AWC 2014 5 4382, LBESR 2014 3 415.

[28] 2019 (8) ADJ 536

[29] Quoted in: Dr. Dheeraj Singh Vs. State Of U.P.Thru Addl.Chief Secy./ Prin.Secy. Finance: 2021-3 AWC 2776.

[30] 1997-1 UPLBEC 415

[31] United Bank of India Vs. Naresh Kumar:AIR 1997 SC 3; Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh: AIR 2006 SC 269; VarunPahwa Vs. Mrs. RenuChaudhary: AIR 2019 SC 1186: 2019-3 JT 109

[32]AIR 1997 SC 3

[33] AIR 1973 SC 2389. See also: Punjab University Vs. VN Tripathi: AIR 2001 SC 3672

[34]AIR 1997 SC 3

[35]AIR 1997 SC 3

[36]2011-11 SCC 524

[37]AIR 1997 SC 3

[38] Samatha Hyderabad Abrasives And Minerals Vs. State of AP: AIR 1997 SC 3297; T.K. SanthanagopalaChettiar Vs. Thimmi M. SeetharamaChettiar 1968-2 Mad LJ 41; S GovindaMenon Vs. Union of India: AIR 1967 SC 1274; S C Sreemanavikraman Raja Vs. Controller of Estate Duty: 1957-2 Mad LJ 226.

[39] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458; Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.

[40] (1904) 31 Ind App 203 (PC); AIR 1983 All 202

[41] AIR 1967 SC 436: Referred to: PramathanathNathVs.Pradyumna: AIR 1925 PC 139.

[42] Kishore Joo Vs. GumanBehariJooDeo: AIR 1978 All 1. Referred to: JagadindraNathVs. HemantaKumari, (1904) 31 Ind App 203.

[43] Hangi Mal Vs. PannaLal: AIR 1957 All 743

[44] Bimal Krishna Vs. IswarRadhaEalla: AIR 1937 Cal 338.

[45] AIR 1939 Cal 699

[46] The Banaras Bank Ltd. Vs. Bhagwan Das: AIR 1947 All 18.

[47] 2013(4) Ker LT 283.

[48] AIR 1941 Bom. 312

[49] Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397

[50] AIR 1962 All 610

[51] Advocates Association Vs. District Registrar and Registrar of Societies: AIR 2006-4 Kar R 218: 2006-4 Kar LJ 526; Relied on: Muddappa Vs. Panchaksharaiah: ILR1985 Kar 1230; Inamdar Vs. BF Swamy: ILR1991 Kar 1654

[52] See: Inamdar Vs. BF Swamy, ILR1991 Kar 1654. Referred to in Advocates Association Vs. District Registrar : 2006-4 AIR Kart 218

[53] SubramaniaPillai Vs. Masterly: AIR1976 Mad 303

[54] AIR1996 SC 1211

[55] Note: RSS was a defendant; and not plaintiff.

[56] (1991) 3 SCC 114

[57] AIR 1985 SC 973

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General

Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy in a Nutshell

Saji Koduvath.

Relevant provisions of KLR Act, in a Nutshell

KLR Act

Section	Provisions in a Nutshell
Chap. II Sec. 3	Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres. “Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7E	Persons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Hec. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13	Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
22	Landlord desiring to *resume* any land shall apply to the Land Tribunal.
31	Fair rent determined by Land Tribunal.
51A 51B	Landlord not to enter on land surrendered or abandoned by the tenant. Contravention is made punishable.
54(1) 55 57 57 (3) 57 (6) 61	54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal. 55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59 57. The LT after enquiries, pass orders determining purchase price. (3). The Land Tribunal allows the purchase of the land it determines. (6). The *Land Tribunal* *forwards* *orders to the Land Board. 61. Tenant to pay rent* (under orders of LT) pending proceedings
59	When Sec. 54 application is allowed _{(by the LT)}, the purchase price _{(determined u/s. 57 by the LT)} shall be deposited with the Land Tribunal to the *credit of the Land Board* and issue of *certificate* – to cultivating tenant.
72	Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt. ILR 2010(2) Ker. 845. 72(1) says: Holdings upon which tenanat entilted fixity under sec. 13 vest in govt.
72B	Cultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72D	The cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
72E	Such a tenant is liable to pay rent to the Govt. for the unassigned land – under Purchase Certificate (E.g., exempted-plantation-land). The Land Tribunal fixes the rent under Sec. 72F(5)(h).
72C	Provides for suo moto action by LT. (No time limit). Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).
72K	LT shall issue purchase certificate. It shall be conclusive proof of assignment.
74	Prohibition of future tenancies.
Chp. III Sec. 81	Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertakings, etc. Note: 1. Section 81(1) exempts Government lands from the provisions of Chapter III. The Proviso says that the following Government lands will not stand exempted. 1. Government-lease-lands 2. Lands that fall under Section 13 (Fixity) and 3. Lands that fall under Section 72 (Lease lands vest in Government). 4. Section 81(4) “permits” use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
82	Ceiling area – 5/10 standard acres.
83	No person can hold or possess excess of ceiling area. (Holding is by tenant.) It is a total bar. (Note: plantations, industrial area etc. are exempted.) Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306 (Thomas Mariamma Vs. TLB); RaghunathLaxmanWani v. The State of Maharashtra (AIR 1971 SC 2137) The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84	Certain transfers – void.
85(1)	Surrender excess.
85(2)	Owners and Tenants (in excess of the ceiling area) should furnish ceiling return to Land Board before March 31, 1971, before the Land Board (including lands exempted under S. 81). Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)	Excess shall be surrendered. *Note*: Tenant must have approached the LT _{(with respect to each plantation, if he has more plantations)} (He cannot declare himself a tenant) It is clear from the following provisions: 54(1) – A cultivating tenant has to apply to LT_{(or the purchase of right, title and interest}_.) 55 – Purchase price and fair rent fixed by LT 57 – LT after giving notice and enquiries, pass orders _{(on the} _{application for the purchase of right, title and interest)}. 57(3) – LT allots the purchase land it determines. 57(6) – The *Land Tribunal* *forwards* a copy of *orders to the Land Board. 61 – Cultivating tenant to pay rent (under orders of LT) 59 – The purchase price shall be deposited with the LT _{(to the credit of the Land Board)}* and issue of certificate – to cultivating tenant. It is the principle applied in the Balanoor case. *Note:* (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’_{(to the credit of the Land Board)} under sec. 61 and 59.
85(3A)	The person bound to file a statement under sub-section (2) _{(that is, Owners and Tenants – having land in excess of the ceiling area)} shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)	On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)	Whereon a person fails to file statement under 85(2), LB shall intimate TLB – TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also have to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file a statement: State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. [TLB not to do, suomotu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85A	File ceiling return within March 2, 1973 before Land Board..
86(1)	On determination of the extent to be surrendered under S. 85- Excess vests in Govt. andTaluk Land Board shall issue an order accordingly.
86(3)	Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)	Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)	Nothing appliesto property of Govt. under KLC Act.
87 Exp. II	If a person converts any portion of his exempted land to any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for that portion. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)
Sec. 112 (5A)	On acquisition, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Sec. 72. Sec. 112 (5A)(a) says that the compensation for any building or other improvements belonging to the landowner shall be awarded to the Government; and clause (b) says that the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.

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Trusts/Religion

Sec. 65B Evidence Act Simplified

Saji Koduvath, Advocate, Kottayam.

PART I – Sec. 65B ON FIRST PRINCIPLES.

Note: Analysis of the author and the law rendered by the Supreme Court of India are given.

Point No. 1

What is brought about by Section 65B, Evidence Act?

It enables a litigant to prove computer output (secondary evidence)
- ‘without further proof or production of electronic record’ (original), and
- by producing a ‘certificate’ (as provided in this Section.
Presumption is provided as to the correctness of the computer output (copy or print out) under Sec. 65B(5)(c).

Sec. 65B deals with ‘Computer Output’ (copy) and not ‘Electronic Record’ (original) as authoritatively pointed out by the Hon’ble Supreme Court.

Sec. 65B is invoked only when a ‘computer output’ (copy) is used in evidence; and it does not pertain to use of (original) ‘electronic record‘ as evidence in court.
Relevant portions of Sec. 65B read as under:
- Sec. 65B. Admissibility of electronic records:
  - (1) … any information contained in an electronic record which is PRINTED ….. or COPIED ….. (hereinafter referred to as the computer output) shall be admissible ….. as evidence of any contents of the original ….”
Supreme Court (Anver PV v. PK Basheer, 2014-10 SCC 473) held as under:
“24. …… If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
This observation is followed in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216)

Point No. 2A.

Non-obstante clause (‘Notwithstanding Anything’) in Sec. 65B – Not exclude Sec. 65. (Note – Contra view by Supreme Court)

What is enabled by the non-obstante clause is – a copy or printout of electronic evidence ‘shall be deemed to be also a document’.
‘Notwithstanding-clause’ in Sec. 65B keeps all other sections in the Evidence Act undisturbed; and it provides for an additional enabling provision – without disabling the force of existing provisions to prove the copy or printout of electronic evidence. Therefore, the copy or printout can be proved under Sec. 65 of the Evidence Act.
Relevant portions of Sec. 65A and Sec. 65B read as under:
- Sec. 65A: Special provisions as to evidence relating to electronic record:
  - The contents of electronic records MAY BE proved in accordance with the provisions of section 65B.
- Sec. 65B: Admissibility of electronic records:
  - (1) Notwithstanding anything contained in this Act, any information … which is printed …… or copied …….. shall be Deemed to be ALSO a Document …
Supreme Court (Arjun Panditrao v. Kailash Kushanrao) held as under –
“31. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections 62 to 65 being irrelevant for this purpose. …...”
“34. …. in Anvar P.V. (supra) … this Court made it clear …… and also that a written certificate under Section 65B(4) is a sine qua non for admissibility of such evidence ……“

Point No. 2B.

Sec. 65B deals with ‘Admissibility’ (alone) of a Computer Output/Copy. If ‘truth’ is in question, it must be proved according to other provisions of the Evidence Act. (Note – Contra view by Supreme Court)

Sec. 65B does not deal with ‘truth’ of the contents of the electronic record; it deals with ‘admissibility of copy’ alone.
The electronic record mentioned in Sec. 65B is – that which is ‘relevant‘; for, it must be one “of which direct evidence would be admissible”.
For, Sec. 65B deals with ‘admissibility of copy’ alone, if truth is in question, it must be proved according to other provisions of the evidence act; ie. by oral, documentary or presumptive evidence.

See Blog (Click): Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)

Relevant portions of 65A & 65B read as under:
- Sec. 65A: Special provisions as to evidence relating to electronic record:
  - The contents of electronic records MAY BE proved in accordance with the provisions of section 65B.
- Sec. 65B: Admissibility of electronic records:
  - (1) … any information contained in an electronic record which is printed ….. or copied ….. shall be ADMISSIBLE in any proceedings ….. as evidence of any contents of the original … of which direct evidence would be admissible.”
Supreme Court (Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, held as under –
“31. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections 62 to 65 being irrelevant for this purpose. …...”
“34. …. in Anvar P.V. (supra) … this Court made it clear that the special provisions of Sections 65A and 65B of the Evidence Act are a complete Code in themselves …… “

Point No. 2C.

Sec. 65B does NOT bar proving copy (by) invoking Sec. 65; Sec. 65B is an enabling provision that enables to prove copy otherwise than (by) laying the foundation or conditions laid down in Sec. 65 (such as loss of original). (Note – Contra view by Supreme Court)

Sec. 65B is an added and enabling provision to prove the copy or printout – otherwise than proving the conditions laid down in Sec. 65 (such as loss of original, original with other side).
By the deeming provision (fiction) in Sec. 65B, a ‘copy’ is raised to the states of a (original) document.
Relevant portion of Sec. 65B reads as under:
- Sec. 65B: Admissibility of electronic records:
  - (1) Notwithstanding anything contained in this Act, any information … which is printed …… or copied …….. shall be Deemed to be ALSO a Document ….
Supreme Court (Arjun Panditrao), held as under –
“35. …….. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P.V., (supra) and CANNOT be said to be a correct statement of the law. The said view is accordingly overruled.”

Point No. 3A.

‘STATEMENTS’ alone can be PROVED by ‘Certificate’ under S. 65B(4). (Note – Contra view by Supreme Court)

The ‘statements‘ (such as bank account statements) alone can be PROVED in evidence under S. 65B, through a ‘certificate’ provided under Sec. 65B(4). It is clear from a simple reading of 65B(4).
Sec. 65B(2) conditions are to be satisfied for ADMISSIBILITY; and not proof. But, it appears that Sec. 65B(4) which takes care of ‘statements‘, deals with authenticity or proof of truth, also;
- because, it is laid down
- (i) that the certificate “shall be EVIDENCE (proof?) of any(?) matter stated” therein, and
- (ii) that, for the purposes of this sub-section, “it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

Sec. 65B(4) reads:

“(4) In any proceedings where it is DESIRED TO GIVE a STATEMENT in evidence, by virtue of this section, a certificate doing any of the following things, that is to say,—
- (a) identifying the electronic record CONTAINING the STATEMENT and describing the manner in which it was produced;
- (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
- (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be EVIDENCE of any matter stated in the certificate;
and for the purposes of this sub-section
it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

See Blog: ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B

Supreme Court (Arjun Panditrao) held as under –

“59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of ELECTRONIC RECORD…. . “

Point No. 3C.

Conditions in S. 65B(2) are to be satisfied through oral evidence or affidavit, (except for ‘Statements’). (Note – Contra view by Supreme Court)

The computer output (copy) containing the information, such as CCTV footage, photo or video in a CD, can be admitted in evidence under S. 65B if only the conditions mentioned in S. 65B(2) (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly) are satisfied, through oral evidence or affidavit. Only exception is to “statements”.

Relevant portions of Sec. 65B read as under:

Sec. 65B: Admissibility of Electronic Records:
(1) …. (computer output) shall be deemed to be also a document, if the CONDITIONS mentioned in this section are SATISFIED ….. without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein (Isn’t “or of any fact stated therein” surpussage?) ……
(2) The conditions ….. shall be the following, namely:—
- (a) …. the computer was used regularly to store … information for the purposes (?) of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
- (b) during the said period, information of the kind contained in the electronic record or of the kind from which ….. information …… was regularly fed into the computer in the ordinary course of the said activities (Isn’t the words “during the said period, information of the kind contained in the electronic record or of the kind from which” a surplusage?);
- (c) throughout the material part …. the computer was operating properly ……; and
- (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (Isn’t the words “or is derived from such information fed into the computer” a surplusage – especially in view of the wordings of clause (b)?)

Supreme Court (Arjun Panditrao) held as under –
“59. ….. Oral evidence in the place of such certificate CANNOT possibly suffice as Section 65B(4) is a mandatory requirement of the law. … Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.”

Point No. 4

Photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc. cannot be used under Sec. 65B. (Note – Contra view by Supreme Court)

It is clear that the computer output (copy) is ‘deemed to be (also) a document’ if only the conditions mentioned in S. 65B(2) are fulfilled, that is:
- S. 65B(2)(a) computer was USED REGULARLY to STORE or process information
  - of the activities REGULARLY CARRIED ON
  - BY THE PERSON having lawful control,
- S. 65B(2)(b) information was REGULARLY FED
  - in the ORDINARY COURSE,
- S. 65B(2)(d) the information is REPRODUCED in the
  - ORDINARY COURSE of the SAID ACTIVITIES.
- (For example – Computer Account statements in a Bank.)
For all other computer outputs (copy of, photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc.), one has to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65.
- See Blog: Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
Therefore, it is beyond any doubt that the following computer output (copy) cannot be used under Sec. 65B:
- CCTV footage –
  - (i) not used to store or process information BY any PERSON [65B(2)(a)] and
  - (ii) not reproduced in the ordinary course [65B(2)(d)] .
- CDs containing speech –
- Videograph of the scene of crime
- trap-video –
  - (i) not used REGULARLY to store or process information [65B(2)(a)],
  - (ii) not regularly fed in the ordinary course [65B(2)(b)] and
  - (iii) not reproduced in the ordinary course [65B(2)(d)].

But, the Supreme Court dealt with CCTV footage in the following landmark cases:
- State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,
- Tomaso Bruno v. State of UP, (2015-7 SCC 178),
CDs/VCDs in respect of video recording by the Election Commission
- Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216
CDs containing election speeches and songs in:
- Anvar PV v. PK Basheer, (2014-10 SCC 473).
Call Detail Records – CDR – of mobile phones in:
- Sonu v. State of Haryana (2017-8 SCC 570)
Tape recorded conversation on the landline phone
- Vikram Singh v. State of Punjab, (2017-8 SCC 518
Propriety of videography of the scene of crime or scene of recovery during investigation, in:
- Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ).

See Blog: How to Prove WhatsApp Chats, Facebook Messages and Website Information in Courts?

Point No. 5.

Should the ‘Correctness’ of Copy or Print-out Must be Proved?

No.

S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put; because, S. 65B(5)(c) lays down-

‘a computer out-put shall be taken to have been produced by a computer’.

Sec. 65B(5)(c) reads:

S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put, inasmuch as S. 65B(5)(c) lays down that ‘a computer out-put shall be taken to have been produced by a computer’.
Sec. 65B(5)(c) reads:
- ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.

What are to be proved (through a Certificate):

Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216) para 21 reads as under:

“Under Sub-section (4), a certificate is to be produced that
- identifies the electronic record containing the statement and
- describes the manner in which it is produced, or
- gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer,
by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities” – whichever is appropriate.

See Blog: EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

PART II

Admissibility and Presumption as to correctness of Computer Output

Sec. 65B declares and expressly lays down that computer output (copy or print)

(i) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and
(ii) shall be admissible in any proceedings, without further proof or production of the original, as evidence
- of any contents of the original or
- of any fact stated therein of which direct evidence would be admissible.

If the conditions mentioned in this Section Sec. 65B(2) are satisfied, by necessary implication, it will bring a presumption under Sec. 114 with respect to regularity of the computer output . Because, admissibility of ‘any fact stated therein‘ ‘without further proof’ is nothing but ‘presumption’ of its regularity and correctness. The net result is that (if the conditions in Sec. 65B(2) are satisfied) the burden to prove otherwise is cast on the person who opposes it.

The requirement in Sec. 65B(2) as to ‘proof’ (through witnesses or certificate) for ‘regularity‘ of feeding information into the computer in the ‘ordinary course‘ eloquently support this proposition.

Note:
- (i) ‘Statements’ alone can be proved by ‘certificate’ under Sec. 65B(4); other ‘information’ are to be proved by proper evidence.
- (ii) Presumption of ‘regularity’ under Sec. 114 Evd. Act can be applied in Sec. 65B.
- (iii) Presumption of a ‘fact or regularity’ under Sec. 114 Evd. Act is, essentially presumption of ‘Truth’ and ‘Correctness’.

Presumption of Fact Means Truth/Correctness of Fact

St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:

“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
(See: Blog: EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION)

Section 65B is a borrowed provision

Section 65B is brought to Indian law from Section 5 of the UK Civil Evidence Act, 1968. It remains a sheer fact that by the time we borrowed this provision (2000) from the UK law, they repealed (1995) it. (It is pointed out in Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216.)

The present UK Act (Civil Evidence Act 1995) does not make any special provision for Electronic Evidence or Computerised Records. It deals this matter under the head ‘hearsay evidence’ and makes ‘safeguards’ with respect to the hearsay evidence.

Who can give Certificate under Sec. 65 B

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020)3 SCC 216 makes it clear-

The certificate can be given by anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device.
The person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B. (It is provided to give the certificate to the “best of his knowledge and belief”.) See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Can the Certificate u/s 65B be Given Long After the Electronic Record was Produced

In Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal, (2020)3 SCC 216 it was held that by virtue of Section 65B(4), the Certificate u/s 65B can be given long after the electronic record has actually been produced by the computer. (Note: the certificate to be given is to the “best of his knowledge and belief”.) See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

PART III – LANDMARK DECISIONS

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, two- judge bench decision (on CCTV footage). It is held:
- “Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision (on CDs containing election speeches). It is held:
- “That (Sections 65A & 65B) is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”
- But finally held: “It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision (on CCTV footage).
- It is held, as to make CCTV footage admissible, as under:
- “Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
Sonu v. State of Haryana (2017-8 SCC 570): two- judge bench decision (on Call Detail Records – CDRs – of mobile phones). It is held:
- “The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ), two- judge bench decision (on videography of the scene of crime). Tomaso Bruno (2015) was followed in. It was held as under:
- “(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
- (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, three-judge bench decision (on CCTV footage). It substantially followed PV Anwar (2014) with a ‘clarification’.
- Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for Sec. 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is ‘clarified’ and directed to ‘read’ Anver “without the words – ‘under Section 62 of the Evidence Act’ “.
- “59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. … Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.”
- In Arjun Panditrao v. Kailash Kushanrao it is found – Tomaso Bruno v. State of UP is per-incurium as under:
- “What is clear from this judgment (Tomaso Bruno) is that the judgment of Anvar P. V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P. V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P. V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”

PART IV

Presumptions Incorporated in Evidence Act While Introducing Sec. 65 A and 65 B

Sec. 81A. Presumption as to Gazettes in electronic forms
The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody
85A Presumption as to electronic agreements
The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.
85B Presumption as to electronic records and electronic signatures
(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
(2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—
(a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
(b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.
85C Presumption as to Electronic Signature Certificates
The Court shall presume, unless contrary is proved, that the information listed in a 86 Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.
88A. Presumption as to electronic messages
The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
“Explanation: For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

End Note:

Sec. 65A and Sec. 65B of the Evidence Act read:

Sec. 65A: Special provisions as to evidence relating to electronic record:
- The CONTENTS of electronic records may be PROVED in accordance with the provisions of section 65B.
Sec. 65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
- (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
- (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
- (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—
- (a) by a combination of computers operating over that period; or
- (b) by different computers operating in succession over that period; or
- (c) by different combinations of computers operating in succession over that period; or
- (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
- (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
- (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate)
  - shall be evidence of any matter stated in the certificate;
- and for the purposes of this sub-section
- it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
- (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
- (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

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Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Mullaperiyar Dam Issues: There Should Be No BAR of Law That MAR Life of People.

Mullaperiyar Disputes and Adjudication of Legal Issues.

Saji Koduvath, Advocate.

Foreword

Laws are made for better life and safety of men. Various rules as to bars and barriers are introduced in the legal system on this principle; whether it be Res Judicata, Constructive Res judicata, Order II rule 2 Bar, Estoppel or Judicial Precedent. Can such negative legal principles be allowed to successfully sound and strike-out in the SUPREME COURT, when the Life and Safety of a Large Number of Citizens of India are reasonably (apprehended to be) in peril, is one of the main questions that arise in Mullaperiyar Dam issue. Those legal doctrines, though interminable, cannot stand as a bar for the SUPREME COURT, especially when it reverberates devastating danger arising out of a structure made by the hands of man. The findings that are made in such a matter arose quarter a century back, should not be allowed to remain constant and untouched. Raising bar by law in this matter will be harsh and imprudent.

Brief History of Mullaperiyar.

Mullaperiyar is situated in Idukki District of the State of Kerala. The dam at Mullaperiyar was built between 1887 and 1895. During that time, this area was under the Kingdom of (erstwhile) Travancore. The purpose of making the dam was irrigation of the severely draught affected, otherwise fertile, land under the Madras Presidency, situated east of Travancore. The designer and builder of this masonry gravity-dam was a British engineer. Before constructing the dam, a lease agreement had been executed on October 29, 1886 between the Maharaja of Travancore and the Secretary of State for India in Council.

“I SIGN WITH BLOOD OF MY HEART”

The lease project under the agreement covered a long period of 999-years. It is said to be unconscionable inasmuch as it came into being out of the mighty clout of the British, and it was practically a unilateral agreement. Certain historians say that the Maharaja of Travancore had bewailed: “I SIGN THIS WITH THE BLOOD OF MY HEART”.

1970 Supplemental Agreements

After independence, two supplemental agreements were executed, in 1970, by the State of Tamil Nadu and State of Kerala. The first one increased the rent from Rs. 5 per acre to Rs. 30 and gave fishing rights in the Periyar lake to Kerala. And, it was recorded that all other
covenants in the 1886 lease deed would remain in force. The second supplemental agreement allowed Tamil Nadu to generate electricity and to pay a nominal consideration to Kerala.

Disputes triggered by the end of the 20^th century

The disputes that triggered by the end of the 20^th century, between the State of Kerala and the State of Tamil Nadu with respect to the maintenance of maximum height of water level of the dam, lead to the formation of an Expert Committee. The committee gave its final report on 16.03.2001. It suggested that the water level in the Mullaperiyar reservoir could be raised up to 142 ft.

Despite the recommendation of the Expert Committee, the Government of Kerala, pointing out safety hazards, continued its protest against the move to raise the water level in the reservoir beyond 136 ft.

Is Mullaperiyar Dam Really a Water-Bomb?

Mullaperiyar dam is constructed in Periyar river above the level of Idukki reservoir. Mullaperiyar is situated 36 kms away (south-east) from Idukki. Water from Mullaperiyar dam will reach the Idukki reservoir when the shutters of Mullaperiyar dam are opened.

On October 29, 2021, while the water-level of the Mullaperiyar dam surpassed limit prescribed by the Supreme Court, and the Tamil Nadu raised shutters, Kerala water resources minister urged people, through a press release, not to be panic, and he declared that there was nothing to be ‘concerned about’. It is seen pointed out by the minister that the storage capacity of Idukki is 70.5 Thousand Million Cubic feet (TMC) as compared to 12.758 TMC of Mullaperiyar; and therefore, the water ‘released’ from the latter would only raise the former’s level by a quarter of a foot (hindustantimes.com : Oct 29, 2021).

But, those people who raise alarm on Mullaperiyar issue say that the dam is in an area where the seismic activity is high; and that the people there feel tremors, frequently. It is a sheer fact that the people of Kerala believe that Vallakadavu, Vandiperiyar, Chappathu and Upputhara towns, situated between Idukki and Mullaperiyar, will be engulfed in flood waters if Mullaperiyar dam is damaged. They further point out that the people of Kerala experienced, in the 2018-flood, that mere rain water (pored for a few days) was capable of immersing a good number of towns and villages; and they compare it with the incomparable water in Idukki reservoir!

Besides Idukki dam, the water in Idukki reservoir is held-back by the service of Cheruthoni and Kulamavu dams also. There are people who believe that the galloping rushy water (if) exploded from the Mullaperiyar dam would be capable of destroying various dams of Idukki reservoir. In case water in Idukki reservoir is burst-out, no doubt, the damage will be devastating. And, it is feared, in such an event, the water in the dam will reach the Arabian sea only after submerging Aluva, Eranakulam Town, Kcohi Airport etc. among many other townships and villages.

Is Idukki dam large enough to hold the entire water that is stopped by Mullaperiyar?

In rainy season both dams will be filled in. But the water level of both dams will be lower in summer. Therefore, the the answer to the question, depends upon the ‘season’. So far as rainy a season is concerned, the storage capacity of both dams itself (Idukki – 70.5 TMC; Mullaperiyar – 12.758 TMC) gives the answer.

History of Union Carbide Disaster

It appears that no effective study is conducted, or it is not published, as to what all villages or towns will be affected, if a mishap occurs; and what all places will give shelter to the the people who may be affected by flooding. The history of Union Carbide disaster at Bhopal should not be allowed to be repeated; in Bhopal, people rushed to the factory premises, seeking help, when the devastating gas outburst took place in the factory compound!

Validity of the century old agreement

After promulgation of the Constitution of India, or after independence, there is only ‘one country and one land’. It is seen argued that the agreement that was executed at a time where this land stood divided should not be allowed to be used as a weapon of oppression, especially since the agreement was an unconscionable one; and the provisions therein should not be pointed out against the reconstruction of the dam by the State of Kerala spending from its own pouch.

Mullaperiyar Litigation – In a Nutshell

First Case – 2006 – Mullaperiyar Environmental Protection Forum v. Union of India
Second Case – 2014 – State of Tamil Nadu v. State of Kerala
Third Case – Originated in 2020 – Dr. Joe Joseph v. State of Tamil Nadu

First Mullaperiar Dam Case Before the Supreme Court

A writ petition was filed by Mullaperiyar Environmental Protection Forum before the Supreme Court (Mullaperiyar Environmental Protection Forum v. Union of India) raising disputes as to the water level to be maintained in the dam. The Apex Court gave its decision on 27.02.2006 (reported in (2006) 3 SCC 643). The Apex Court permitted to rise the water level in the Mullaperiyar dam up to 142 ft. The State of Kerala and its officers were restrained from causing any obstruction to the rising of level. It was also observed that, after the strengthening-work was completed to the satisfaction of CWC, independent experts would examine the matters ‘on safety angle before the water level is permitted to be raised up to 152 ft’.

Second Mullaperiar Dam Case Before the Supreme Court

State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696, is the second prominent Supreme Court decision on Mullaperiyar dam related issues. It is pronounced in the matter of validity of an enactment made by the State of Kerala; viz, The Kerala Irrigation and Water Conservation (Amendment) Act, 2006. The crux of the issue in that case was as regards the maximum water level to be maintained in the Mullaperiyar dam. The State of Tamil Nadu argued that the rights implored in this dispute had already been crystallised in the earlier Judgment on the (first) Mullaperiyar dam case, Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643. Accepting the claim of Tamil Nadu, the Apex Court restrained the State of Kerala by a decree of permanent injunction from obstructing the State of Tamil Nadu from increasing the water level to 142 ft.

Third Mullaperiar Dam Case Before the Supreme Court

Urging that the matters involved in the Mullaperiyar dam issues require a reconsideration in the ‘safety and security’ angle, a third round of litigation (Dr. Joe Joseph v. State of Tamil Nadu) is originated in 2020 before the Supreme Court.

Kerala Irrigation and Water Conservation (Amendment) Act, 2006

Within less than three weeks of the decision in Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643, the Kerala State Legislature amended Kerala Irrigation and Water Conservation Act, 2003, by passing the Kerala Irrigation and Water Conservation (Amendment) Act, 2006. The Amendment Act, in its application to and effect on the Mullaperiyar dam (as found by the Supreme Court in State of Tamil Nadu v. State of Kerala, 2014-12 SCC 696), seeks to attain the following:

“(a) It substitutes Section 62 with a new provision whereby, notwithstanding the judgment of this Court and notwithstanding anything contained in any treaty, contract, 1886 Lease Agreement and 1970 supplemental agreements, the function of evaluation of safety of the Mullaperiyar dam and the power to issue directions to Tamil Nadu as custodian are conferred upon Dam Safety Authority;
(b) the Dam Safety Authority is empowered, inter alia, to restrict the functioning of Mullaperiyar dam and/or to conduct studies on the advisability of raising or lowering of the maximum water level or the full reservoir level;
(c) Mullaperiyar dam is considered by Kerala legislature to be endangered and by virtue of Section 62(A), it takes away the right of Tamil Nadu to increase, expand the FRL or in any manner increase the water level as set out in the Second Schedule except in accordance with the provisions of the Act;
(d) under Section 62A(4), Tamil Nadu as custodian has to submit an application to the Dam Safety Authority for its prior consent for the increase in the water level;
(e) it takes away all rights of Tamil Nadu including the right which has passed into judgment of this Court to increase the water level;
(f) the Dams Safety Authority has power to order de-commissioning of the Mullaperiyar dam.”

Challenge by the State of Tamil Nadu

The Kerala (Amendment) Act, 2006 led the State of Tamil Nadu to challenge the Act contending, inter alia, the following:

Usurpation of judicial power
(a) The impugned legislation amounts to usurpation of judicial power inasmuch as Kerala State Legislature has arrogated to itself the role of a judicial body and has itself determined the questions regarding the dam safety and raising the water level when such questions fall exclusively within the province of the judiciary and have already been determined by this Court in its judgment dated 27.02.2006.
Violation of legislative competence
(b) 2006 Amendment Act is beyond the legislative competence of the State of Kerala insofar as it affects the Mullaperiyar dam in view of Section 108 of the SR Act which is a law made by Parliament under Articles 3 and 4 of the Constitution, which confer plenary power to traverse all legislative entries in all the three lists including Entry 17 List II.
Violation of rule of law and separation of power
(c) The impugned legislation, in its application to the Mullaperiyar dam, violates the rule of law and the federal structure and the separation of power under the Constitution. The Kerala State Legislature has taken the law in its own hands after the declaration of law by this Court. Kerala having participated in the adjudicatory process before the Apex Court, it cannot become a Judge in its own cause and seek to reverse the decision of this Court because it has gone against it.
Disobeyance of Apex Court decision
(d) The impugned legislation not only fixes and limits the FRL to 136 ft. in direct contravention of the judgment of the Apex Court but also proceeded to authorise the Dam Safety Authority of Kerala – to disobey and disregard the decision of the Apex Court by various other provisions.
(Amendment) Act Overturned and nullified Apex Court verdict
(e) 2006 (Amendment) Act is not a validation act but a mere device to defy, obstruct and nullify the judgment of this Court and constitutionally interfere with, restrict or extinguish the legal rights of Tamil Nadu as upheld by this Court. A Legislature cannot by mere declaration and enactment overrule and nullify a judicial decision. The direct object and effect of the impugned legislation is to overturn the judgment of the Apex Court and to arrogate to Kerala the power to prevent Tamil Nadu from exercising its legal rights which have already been upheld by this Court.

Reliefs sought for

The State of Tamil Nadu had sought for two-fold relief:

(i) to declare the 2006 (Amendment) Act passed by the Kerala legislature as unconstitutional in its application to and effect on the Mullaperiyar dam and
(ii) to pass a decree of permanent injunction restraining the first defendant from applying and enforcing the impugned legislation interfering with or obstructing the plaintiff from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.02.2006 in W. P. (Civil) No. 386 of 2001 with connected matters.

Defence by State of Kerala

The State of Kerala resisted the suit raising, among others, the following contentions:

The suit itself is not maintainable.
Contract Unconscionable
1886 Lease Agreement is an unconscionable contract because of its duration (999 years) as well as the fact that the lease conveys for a small rent a vital resource of Kerala. The lease was obtained by the Secretary of State for India in England obviously by holding threat of paramountcy over Maharaja of Travancore, who was his vassal.
The two supplemental agreements of 1970 have not been executed in terms of mandatory provisions of Article 299 of the Constitution and, therefore, they do not constitute contracts in the eye of law. In any event, these agreements do not bind the State legislature at all.
999 years Agreement lapsed under Indian Independence Act
The 1886 Lease Agreement for 999 years stood lapsed under the provisions of Section 7(1)(b) of the Indian Independence Act, 1947.
From 1947 to 26.01.1950, the lease was continued as a temporary lease on annual basis. After 26.01.1950, even the temporary continuation of the lease came to an end. The possession of the land held and continued by the then Government of Madras and now Tamil Nadu, after 26.01.1950 has no juridical basis.
Kerala legislature competent to modify the terms in public interest
Entries 17 and 18 of List II (State List) and Entries 17, 17-A and 17-B of the Concurrent List of the Seventh Schedule to the Constitution justify the competency of Kerala legislature to enact the 2006 (Amendment) Act.
It is competent for the Kerala legislature to modify Kerala legislature to modify the terms the terms of the lease in public interest (if the lease has survived as contended by the Tamil Nadu), as the lease inherited under Article 295 of the Constitution does not bind the legislature of the state and that it is always open to the legislature to modify such conditions by law.
2006 (Amendment) Act – dams fall within the territory of Kerala
Kerala legislature enacted the 2006 (Amendment) Act for regulating the storage levels of 22 dams listed in the Second Schedule read with Section 62A (1), as these dams fall entirely within the territory of Kerala and these dams are considered to be endangered on account of their age, degeneration, degradation, structural or other impediments. Such a law is perfectly valid.
Under Section 62A(3) of the 2006 (Amendment) Act, the FRL can be increased beyond 136 ft. after obtaining prior consent of the Dam Safety Authority headed by a retired Judge of the High Court.
If Tamil Nadu approaches under Section 62A(3), Kerala reserves its right to oppose such plea by demonstrating how such increase would lead to spread of backwater beyond the contour line of 155 ft. and how the flora and fauna including ecology would be destroyed.
2006 (Amendment) Act creates a working mechanism to deal with a problem like displacement of those whose lands are likely to be affected by the backwater effect.
Safety of the dam
The impact of increased storages on the safety of the dam will also be demonstrated before the Dam Safety Authority. This was not the matter that was required to be considered by this Court in the previous case, since in that case, the focal issue was the implications of the increase in height upon the safety and integrity of the dam.
Structure of the Mullaperiyar dam
It is not constructed entirely with rubble masonry in lime mortar. The front and rear faces are constructed of uncoursed rubble masonry in lime mortar. The hearting (center core) is of lime surkhi concrete, therefore, dam cannot be considered as homogeneous masonry dam under any circumstances. In view of Kerala, a dam could never have been intended to remain for long years without decommissioning at some point of time. For this background, people in Kerala living in the downstream region of the Mullaperiyar dam have raised serious apprehensions against the safety of the structure.
Periyar is not an inter-state river
River Periyar is not an inter-state river. It has asserted that river Periyar is an intra-state river as it rises in Quilon District in Kerala and traverses only through the territory of Kerala before falling into the Arabian sea. The total catchment of Periyar basin is 5398 sq. km. of which only about 113 or 114 sq. km. lie within the territory of Tamil Nadu. Even this small catchment of 113 sq. km. lying in Tamil Nadu, is in the downstream region of the Mullaperiyar dam. Therefore, no water from this catchment is contributed to the kitty of Mullaperiyar dam.
Earlier judgment of the Court: No res judicata in public interest Matters
The judgment concluded the issue relating to safety of the people and degradation of the environment, apart from issue arising from Article 363 of the Constitution. The doctrine of res judicata or constructive res judicata has no relevance to the question of powers on the Kerala legislature to regulate the storage level of the Mullaperiyar dam in larger public interest by legislation. Kerala states that the impugned legislation removes the legal basis of the judgment, i.e., the right of Tamil Nadu to store water up to 142 ft. in Mullaperiyar reservoir. The legislature is competent to remove the basis of any judgment and, therefore, it is not permissible for Tamil Nadu to claim any right to store water at Mullaperiyar dam beyond 136 ft. Kerala has assailed the findings and conclusions in the earlier judgment dated 27.02.2006 on all possible grounds.
Suit Not Maintainable under Article 131 of the Constitution
The basis of claim made by Tamil Nadu lies in the 1886 Lease Agreement which is a contractual right leading to civil dispute, if any, but it is not in dispute in the constitutional context as required under Article 131 of the Constitution of India. Kerala’s further case is that 1886 Lease Agreement was executed between the Maharaja of Travancore and Secretary of State for India in England and as such the agreement is in the nature of treaty and act of state, the enforcement of which is barred by proviso to Article 131 of the Constitution. Tamil Nadu, therefore, cannot seek enforcement of 1886 lease deed before this Court.
Report of the Expert Committee for assessing the structural safety of the dam
This report was relied upon by the Court in its judgment on 27.02.2006. Both the interim report and final report submitted by the Expert Committee are riddled with inconsistencies and the views of the Committee do not constitute an authoritative opinion. Kerala has denied that storages at Mullaperiyar dam beyond 136 ft. will not pose any danger.
Water beyond 136 ft. would not be required
Storage at Mullaperiyar dam beyond 136 ft. would not be required to meet the irrigation requirement of 2,08,144 acres in 5 southern districts of Tamil Nadu, although the irrigation originally planned was not more than 1.5 lakh acres. The contention of Tamil Nadu that due to non-restoration of FRL from 136 ft., Tamil Nadu’s irrigation is getting suffered is not correctet. Tamil Nadu was able to irrigate more area with Mullaperiyar water, even after lowering the water level to 136 ft.

Nub of the Findings in the 2nd Mullaperiar Dam Case

The 2014 Judgment in the 2nd Mullaperiar dam case went against the stance of Kerala, mainly, on the following observations and findings of the Supreme Court:

When dispute already adjudicated, one of the parties cannot overturn the final judgment. When the dispute between two States has already been adjudicated upon by the Supreme Court, any unilateral law enacted by one of the parties results in overturning the final judgment. A judicial decision can be reopened in the changed circumstances by the Court alone and no one else.
A final judgment remains in force until altered by the court. A categorical finding has been recorded by the Court in the earlier judgment that the Mullaperiyar dam is safe and that judgment has become final and binding. A final judgment remains in force until it is altered by the court. Legislature cannot reopen or alter a judicial decision rendered on a finding of fact.
Kerala Act infringes the doctrine of separation of powers and rule of law. The impugned 2006 (Amendment) Act is bad because it infringes the doctrine of separation of powers and rule of law. Legislature cannot indirectly control the Courts. The Amendment Act is a classic case of nullification of a judgment.
Legislature has clearly usurped the judicial power. If the judgment of this Court and the 2006 (Amendment) Act are placed side by side, both cannot stand together. By such law, the legislature has clearly usurped the judicial power.
If substantial changes the Court can be approached. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam.

Issues, and Findings of the Supreme Court (in 2014 Judgment in the 2nd Mullaperiar dam case) in a Nutshell

Issue Nos	Issues	Findings in Nutshell
1.	Whether the suit is maintainable under Article 131 of the Constitution of India.	Maintainable.
5.	Whether the suit based on a legal right claimed under the lease deed executed between the Government of the Maharaja of Travancore and the Secretary of State for India on 29.10.1886, is barred by the proviso to Article 131 of the Constitution of India?	Not barred.
6.	Whether the first defendant is estopped from raising the plea that the deed dated 29.10.1886 has lapsed, in view of subsequent conduct of the first defendant and execution of the supplemental agreements dated 29.05.1970 ratifying the various provisions of the original Deed dated 29.10.1886.	The State of Kerala (first defendant) is estopped.
7	Whether the lease deed executed between the Government of the Maharaja of Travancore and Secretary of State for India on 29.10.1886 is valid, binding on first defendant and enforceable by plaintiff against the first defendant.	The lease deed is valid and binding on the first defendant and it is enforceable by plaintiff.
2. (a)	Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, in its application to and effect on the Mullai Periyar Dam?	Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires.
3.	Whether the rights of the plaintiff, crystalised in the Judgment dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be nullified by a legislation made by the Kerala State Legislature?	(ii.) The rights crystallized in the Judgment cannot be nullified by a legislation.
4. (a)	Whether the judgment dated 27.2.2006 of this Court in WP(C) No. 386/2001 operated as res judicata, in respect of all or any of the defences set up by the first defendant in its written statement?	The earlier judgment operates as res judicata on the issue of the safety of Mullaperiyar dam for raising water level to 142 ft. and ultimately to 152 ft. after completion of further strengthening measures on the Mullaperiyar dam.
4(b)	Whether the pleas relating to validity and binding nature of the deed dated 29.10.1886, the nature of Periyar River, structural safety of Mullai Periyar Dam etc. raised by the first defendant in its defence, are finally decided by the judgment of this Court dated 27.2.2006 in WP(C) No. 386/2001, and consequently first defendant is barred from raising or reagitating those issues and pleas in this suit, by the principle of res judicata and constructive res judicata?	The plea raised by Kerala relating to the lease deed dated 29.10.1886 and structural safety of Mullaperiyar dam have been finally decided by the judgment of this Court dated 27.2.2006 and Kerala is estopped from raising or re-agitating these issues in the present suit.
10	Whether the first defendant can obstruct the plaintiff from increasing the water level of Mullai Periyar Dam to 142 ft. and from carrying out repair works as per the judgment dated 27.2.2006 of this Court in WP(C) No. 386/2001.	Kerala cannot obstruct Tamil Nadu from increasing the water level of Mullaperiyar dam to 142 ft. and from carrying out repair works as per judgment dated 27.2.2006.
8	Whether the first defendant is estopped from contending that Periyar River is not an inter-State river.	Kerala cannot be permitted to contend that river Periyar is an intra-State river.
9	Whether the offer of the first defendant, to construct a new dam across River Periyar in the downstream region of Mullai Periyar Dam would meet the ends of justice and requirements of plaintiff.	For the construction of new dam, there has to be agreement of both the parties. The offer made by Kerala cannot be thrusted upon Tamil Nadu.
11	To what relief is the plaintiff entitled to?”	Tamil Nadu is entitled to the reliefs as prayed in para 40 (i) and (ii) of the suit. Consequently, it is declared that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 passed by the Kerala legislature is unconstitutional in its application to and effect on the Mullaperiyar dam.
2(b)	Whether plaintiff is entitled to a permanent injunction restraining the first defendant from applying and enforcing the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 with reference to Mullai Periyar Dam?	The 1st defendant – State of Kerala – is restrained by a decree of permanent injunction from applying and enforcing the impugned legislation or in any manner interfering with or obstructing the State of Tamil Nadu from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.2.2006 in W.P.(C) No. 386/2001 with connected matters.

Third Round of Litigation: Dr. Joe Joseph v. State of Tamil Nadu

Fresh spurt of arguments are surged in the Supreme Court on filing the Writ Petition, Dr. Joe Joseph v. State of Tamil Nadu, in 2020, beseeching a re-look on the issues on the premises of ‘safety and security’ . The Apex Court has already taken notice of the need to ‘ensure the safety of people’; and it directed the State of Tamil Nadu, on March 16, 2021, to furnish requisite information to the Supervisory Committee. The Court further directed that the Supervisory Committee should take necessary steps including issuance of appropriate directions to the concerned party-States as may be necessary and to submit an action taken report before the Court.

Now the matter is in the process of settlement of issues to be addressed in the case.

End Notes:

Important observations & findings in State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696:

Arguments of State of Kerala: “135. On the other hand, the argument of Mr. Harish N. Salve, learned senior counsel for Kerala, is that the legislature of every State has not just the power but the obligation to take appropriate legislative measures to ensure the safety and security of its residents. Where the legislature of a State is satisfied that there is a need to curtail the use or storage of a water reservoir to protect its citizenry and elects to enact legislation as a precautionary measure, the legislation cannot be said to be in excess of the legislative competence of the State if it relates to reservoir and dam within the legislating State. Kerala legislature has imposed precautionary measures by placing pro tem restrictions on the storage level of the dams mentioned in the Second Schedule read with Section 62A(2) of the 2006 (Amendment) Act and the said restrictions are based on the legislative wisdom of the Kerala legislature that these dams are endangered on account of their age, degeneration, degradation, structural or other impediments. While adjudicating upon the constitutional validity, Mr. Harish Salve argues that the Court must proceed on the premise that the legislature understands and correctly appreciates the needs of its own people and its laws are directed to the problems made manifest by its experience and are based on adequate grounds.
136. Mr. Harish N. Salve, learned senior counsel for Kerala heavily relies upon ‘precautionary principle’ and ‘public trust doctrine’ and argues that Kerala legislature was competent to override the contracts and regulate safety of the Mullaperiyar dam situated within its territory across river Periyar. His submission is that the State as sovereign retains continuing supervisory control over navigable waters and underlying beds. It is his submission that the State has a duty of ‘continuing supervision’ even after such rights have been granted. In this regard strong reliance is placed by him on Pfizer Animal Health.”
Legislature cannot indirectly control the Courts: “141. It is true that the State’s sovereign interests provide the foundation of the public trust doctrine but the judicial function is also a very important sovereign function of the State and the foundation of the rule of law. The legislature cannot by invoking ‘public trust doctrine’ or ‘precautionary principle’ indirectly control the action of the Courts and directly or indirectly set aside the authoritative and binding finding of fact by the Court, particularly, in situations where the executive branch (Government of the State) was a party in the litigation and the final judgment was delivered after hearing them.”
Legislature cannot alter a judicial decision rendered on a Finding of Fact. “143. This Court in Mullaperiyar Environmental Protection Forum, after hearing the State of Kerala, was not persuaded by Kerala’s argument that Mullaperiyar dam was unsafe or storage of water in that dam cannot be increased. Rather, it permitted Tamil Nadu to increase the present water level from 136 ft. to 142 ft. and restrained Kerala from interfering in Tamil Nadu’s right in increasing the water level in Mullaperiyar dam to 142 ft. Thus, a judgment has been given by this court in contest between the two States in respect of safety of Mullaperiyar dam for raising water level to 142 ft. The essential element of the judicial function is the decision of a dispute actually arising between the parties and brought before the court. Necessarily, such decision must be binding upon the parties and enforceable according to the decision. A plain and simple judicial decision on fact cannot be altered by a legislative decision by employing doctrines or principles such as ‘public trust doctrine’, ‘precautionary principle’ ‘larger safety principle’ and, ‘competence of the State legislature to override agreements between the two States’. The Constitutional principle that the legislature can render judicial decision ineffective by enacting validating law within its legislative field fundamentally altering or changing its character retrospectively has no application where a judicial decision has been rendered by recording a finding of fact. Under the pretence of power, the legislature, cannot neutralise the effect of the judgment given after ascertainment of fact by means of evidence/materials placed by the parties to the dispute.”
A final judgment remains in force until altered by the court: “A decision which disposes of the matter by giving findings upon the facts is not open to change by legislature. A final judgment, once rendered, operates and remains in force until altered by the court in appropriate proceedings.
145. Section 62A declares the dam to be endangered. The Second Schedule appended to the Act fixes the height of the water level at 136 ft. though this Court in its judgment had declared Mullaperiyar dam safe and permitted the increase of the water level to 142 ft. Moreover, the 2006 (Amendment) Act authorises the Dam Safety Authority to adjudge its safety to allow raising of water level. The provision is in direct disregard of the judgment of this Court. Section 62A also freezes all work on the dam allowed by this Court in its judgment dated 27.2.2006. In our opinion, by 2006 (Amendment) Act, the Kerala legislature has overturned a final judgment in the interest of its own executive Government. The impugned law amounts to reversal of the judgment of this Court which determines directly the question of safety of Mullaperiyar dam for raising water level to 142 ft. and whereunder Tamil Nadu’s legal right has been determined.”
Judicial decision on a particular fact cannot be reopened by legislature: “146. On behalf of Kerala, it is strenuously argued by Mr. Harish Salve that right to safety of the people being a public right could not have passed into 2006 judgment of this court. In this regard, heavy reliance is placed on the majority decision of the Wheeling Bridge. Firstly, public right qualification in Wheeling Bridge has no application in the present case as there is a critical difference between the provisions impugned before us and the provisions which were impugned before US Supreme Court in Wheeling Bridge. The principle question before the US Supreme Court in Wheeling Bridge was whether or not the compact could operate as a restriction upon the power of courts under the Constitution to regulate commerce among several States. In response to the argument urged before it that the Congress cannot have the effect to annul the judgment of the court already rendered or the rights determined thereby was accepted as a general proposition but this proposition was held not applicable in the matters of adjudication upon the public rights. In our view, a legislation violating the separation of powers principle cannot be saved by carving out an exception that the legislature has regulated a public right. We think that the act of legislature designed to achieve a legitimate regulatory measure does not grant constitutional immunity to such law enacted in violation of separation of powers principle or in other words, rule of law. Once a judicial decision on ascertainment of a particular fact achieves finality, we are afraid the legislature cannot reopen such final judgment directly or indirectly. In such cases, the courts, if brought before them, may reopen such cases in exercise of their own discretion.
147. In our view, Wheeling Bridge qualification by the majority decision of U.S. Supreme Court cannot be read to permit the actual revision of the final judgment by the legislature. If Wheeling Bridge lays down the proposition that a judgment declaring a public right may be annulled by subsequent legislation as contended by Mr. Harish Salve, then we say, as we must, that we are not persuaded to accept such proposition of majority judgment in Wheeling Bridge29. The two separate opinions in Wheeling Bridge one by McLean J. and the other by Wayne J. – though in minority- also did not accept such proposition.
148. The above discussion must also answer the argument of Mr. Harish Salve that rules of inter partes litigation do not determine the obligation of the State for safety of its people. We do not think it is necessary to consider the opinion of Weeramantry, J. in Gobcikovo-Nagymaros Project (ICJ) in detail. The stress laid by Weeramantry, J. is that where issue of serious or catastrophic environmental danger arises, the Court must look beyond inter partes adversarial procedures.”
It is open to approach court for re-assessing safety aspect: “149. It is true that safety of dam is an aspect which can change from time to time in different circumstances but then the circumstances have to be shown based on which it becomes necessary to make departure from the earlier finding. It is always open to any of the parties to approach the court and apply for re-assessing the safety aspect but absent change in circumstances, factual determination in the earlier proceedings even on the questions such as safety of dam binds the parties. If the circumstances have changed which necessitates a re-look on the aspect of safety, the Court itself may exercise its discretion to reopen such case but legislative abrogation of judgment for even the very best of reasons and genuine concern for public safety does not clothe the legislature to rescind the judgment of the court by a legislation.”
Mullaperiyar dam was found safe and that finding was not imaginary: “150. The contention of Mr. Harish Salve that by declaring dam unsafe, the legislature has not rendered any finding of fact; it deems dam unsafe and sets up an Authority to regulate it, is noted to be rejected. What has been found as a fact by judicial determination cannot be declared otherwise by applying legal fiction. We are, however, persuaded to accept the submission of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that the fact that the Mullaperiyar dam is safe was found by this Court and that finding of fact can never be deemed to be imaginary by a legal fiction which then proceeds to deem the opposite to be real, viz., that the dam is endangered. This is not a matter of legislative policy as it is being made out to be, rather in our opinion, it is incursion in the judicial process and functions of judicial organ. The declaration in Section 62A read with item No. 1 of the Second Schedule leaves no manner of doubt that the enactment is intended to reach the question decided by the Court.“
The impugned law is a classic case of nullification of a judgment: “151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Forum and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Forum1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.
152. There is yet another facet that in federal disputes, the legislature (Parliament and State legislatures) cannot be judge in their own cause in the case of any dispute with another State. The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States. If this was permitted under the Constitution, the Union and the States which have any dispute between them inter se would enact law establishing its claim or right against the other and that would lead to contradictory and irreconcilable laws. The Constitution makers in order to obviate any likelihood of contradictory and irreconcilable laws being enacted has provided for independent adjudication of federal disputes. Article 131 of the Constitution confers original jurisdiction upon this Court in relation to the disputes between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States insofar as dispute involves any question on which the existence or extent of a legal right depends. The proviso appended to Article 131 carves out an exception to the jurisdiction of this Court to a dispute arising out of treaty, agreement, covenant, engagement, sanad or other similar instrument which have been entered into or executed before the commencement of the Constitution and continues in operation after such commencement, which are political in nature. In relation to dispute relating to waters of inter-State river or river valleys, Article 262 provides for creation of tribunal or forum for their adjudication. In federal disputes, Parliament or State legislatures by law, if seek to decide a dispute between the two States or between the Union and one or more States directly or indirectly, the adjudicatory mechanism provided in Articles 131 and 262 of the Constitution would be rendered nugatory and, therefore, such legislation cannot be constitutionally countenanced being violative of separation of powers doctrine.
153. Mr. Harish Salve, learned senior counsel is right in his submission that a legislation can never be challenged on the principles of res judicata and that it binds a party and not the legislature. The question here is not that the 2006 (Amendment) Act is unconstitutional on the ground of res judicata but the question is, when a categorical finding has been recorded by this Court in the earlier judgment that the dam is safe for raising the water level to 142 ft. and permitted the water lever of the dam being raised to 142 ft. and that judgment has become final and binding between the parties, has the Kerala legislature infringed the separation of powers doctrine in enacting such law? In what has already been discussed above, the answer to the question has to be in the affirmative and we hold so.
154. Where a dispute between two States has already been adjudicated upon by this Court, which it is empowered to deal with, any unilateral law enacted by one of the parties that results in overturning the final judgment is bad not because it is affected by the principles of res judicata but because it infringes the doctrine of separation of powers and rule of law, as by such law, the legislature has clearly usurped the judicial power.”
Court can be approached if emergent situation as to safety of dam.: “165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal . In N.D. Jayal, Dharmadhikari, J. made general observations on the dam safety aspect that plea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The observations made by Dharmadhikari, J. in N.D. Jayal have to be read as an exception to the res judicata rule in the matters where, by their very nature, the factual situation has drastically changed in course of time. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam. In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else.
166. On behalf of Kerala, it is contended that the jurisdiction of this Court under Article 32 of the Constitution for enforcement of the fundamental rights conferred by Part III of the Constitution is ousted or excluded in respect of disputes between two or more States: since such disputes fall within the ambit of the original jurisdiction of this Court under Article 131 of the Constitution or jurisdiction of a tribunal constituted under the provisions of Inter-State River Water Disputes Act, 1956 read with the provisions of Article 262 of the Constitution. Thus, it was submitted that the 2006 judgment is not binding and that the rule of res judicata can hardly be attracted in this situation.
167. We are unable to accept the submission of the learned senior counsel for Kerala. The label of jurisdiction exercised by this Court is not material for applicability of principles of res judicata if the matter in issue in the subsequent suit has already been concluded by the earlier decision of this Court between the same parties. The 2006 judgment was the result of judicial investigation, founded upon facts ascertained in the course of hearing. The plea of lack of jurisdiction of this Court was taken in the earlier proceedings on both the grounds, viz., (1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and (2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding.”
Safety of Mullaperiyar dam – Evidence and EC Report
195. Having done elaborate and detailed appraisal and analysis of the voluminous tests and reports of experts and having regard to the concerns expressed by Kerala about the safety of the Mullaperiyar dam, EC has summarized its conclusions on the three aspects, viz.,
- (a) hydrologic safety;
- (b) structural safety; and
- (c) seismic safety as follows:
“A) Hydrologic Safety
23. The MPD is found hydrologically safe. The Probable Maximum Flood (PMF), with a peak flow of 2.12 lakh cusecs (6003 cumecs) is accepted by EC. It can be routed over the reservoir FRL 142 ft (43.28
m) to safely pass over the MPD spillway with 13 gates operative, resulting into a peak out flow of 1,43,143 cusecs (4053 cumecs), raising the Maximum Water Level (MWL) to elevation 153.47 ft (46.78 m) transiently. Even for the Test Case of one gate remaining inoperative, the MWL raises to elevation 154.10 ft (46.97 m) when PMF impinges the reservoir at FRL 142 ft (42.28 m).
B) Structural Safety
24. Both the main and Baby Dam (gravity and earth), are structurally safe. FRL can be restored to the pre-1979 position. Following maintenance and repair measures, should however be carried out in a time-bound manner: i) treatment of upstream surface, ii) reaming of drainage holes, iii) instrumentation, iv) periodical monitoring, analysis and leading away the seepage from toe of the dam towards downstream, v) geodetic re-affirmation, etc., vi) the dam body should be grouted with a properly designed grout mix of fine cement / suitable chemical / epoxy / polymer according to expert advice so that its safety continues to remain present.”
C) Seismic Safety
25. MPD is found to be seismically safe for FRL 152 ft (46.33 m) / MWL 155 ft (47.24 m) for the identified seismic design parameters with acceleration time histories under 2-D FEM Analysis. The strength and other properties of dam material presently available, indicate ample reserve against the likely stresses / impacts assessed under this analysis. In addition, reserve strength of cable anchors makes the dam further safe. The suspicion about existence of a geological fault in the Baby Dam foundation is ruled out. The recent earthquake activity in the dam area is considered of no consequence to the seismic safety. Also, it has caused no distress to MPD / Idukki dams.”
CC investigations carried out with representatives of both the States: “196. Kerala has vehemently challenged the EC report and its conclusions. Mr. Harish Salve, learned senior counsel for Kerala, argues that the ITS reports contained in 50 CDs and 4 DVDs are not admissible and should not be considered as part of material on record before this Court. He submits that EC suo motu decided to conduct investigations, tests and studies on various aspects related to the case through the apex organizations, the Coordination Committee was formed, headed by Dr. C.D. Thatte, member of the EC, and consisting of representatives of Kerala and Tamil Nadu and though the representatives of States were made part of the Coordination Committee, but their role was limited to more of being an observer and unilateral decisions regarding the studies, etc., were taken by Dr. C.D. Thatte, which were prejudicial to the interest of Kerala. Kerala’s grievance is that the EC on 5.12.2011 declined to disclose and supply the copies of results and ITS reports without dealing with the question of prejudice. Subsequently, EC submitted its report before this Court and the Court directed the Registry on 4.5.2012 to supply copy of the report of the EC to party States and, accordingly, the Registry of this Court made available a photocopy of the report. The report supplied by the Registry to Kerala did not include the results and reports of the ITS listed in Annexure 6.1 of the report but later on pursuant to the order of this Court dated 31.8.2012, all 50 CDs and 4 DVDs were supplied to the counsel for Kerala. It is submitted on behalf of Kerala that the fair procedure and rules of natural justice demanded that the EC should have disclosed the results and reports of ITS relied upon by it and given an opportunity to Kerala on the acceptability of the ITS reports. It is strenuously urged by learned senior counsel for Kerala that the ITS reports are the opinions of experts and, therefore, the EC could not have relied upon such results and reports without giving an opportunity to it to meet the adverse contents and Kerala has the right to cross-examine the authors and also to lead evidence of experts, if any, challenging the adverse results and reports of the ITS. In this regard, Kerala referred to the application made before EC on 21.11.2011. Kerala also relied upon the decision of Queens Bench in Regina.
197. We are not persuaded by the submissions of Mr. Harish Salve. It is true that 50 CDs and 4 DVDs containing ITS reports were supplied to Kerala pursuant to the order of this Court dated 31.8.2012 after the report had been submitted by the EC but the fact of the matter is that the EC decided to conduct the investigations, tests and studies on various aspects relating to the safety of the Mullaperiyar dam through the apex organizations pursuant to the task given to it by this Court. The EC in its proceedings dated 17.2.2011 formed a Coordination Committee which comprised the representatives of both the States. It is very difficult to accept that the role of the representatives of the States in the Coordination Committee was limited to that of being an observer. The ITS reports have been given by the organizations and bodies which are expert on the job. We have no hesitation in holding that the investigations, tests and technical studies were directed to be carried out by the EC in association with representatives of both the States.”

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Oral Evidence on Contents of Document, Irrelevant

Also Read: Contents of a Document are to be Proved in Court by Producing Original or Secondary Evidence

Jojy George Koduvath.

Abstract.

Oral evidence on contents of documents (unless secondary evidence is permitted, and unless fall under the exceptions in Sec. 92 Evidence Act) will be of no use, as it will be ‘irrelevant’.

Part I

Best-Evidence Rule.

Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:

No.	Proposit`i`ons	Sec. in Evd. Act
1	Best available evidence must be produced. If not, adverse presumption may be taken.	114 (g)
2	Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).	60
3	Documents must be proved by Primary Evidence. Contents of documents and electronic records are not allowed to be proved by oral evidence; nevertheless, secondary evidence is allowed when it is so permitted.	64 & 65; 59; 22, 22A & 144.
4	To prove the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, document itself, or secondary evidence, must be produced.	91
5	No evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.	92
6	Sec. 93 and 94 speaks as to exclusion of evidence.	93 & 94
7	Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.	94 to 99
8	Circumstantial and Presumptive evidence can be resorted to in proper cases.	114
9	Substantive evidence that requires corroboration must be corroborated.	157
10	When secondary evidence is permitted (under Sec. 65), Oral Evidence is a kind of secondary evidence.	63(5)

See Blog: Best Evidence Rule in Indian Law

Documents must be Proved by Primary Evidence

Contents of documents are to be proved by producing the document itself, or its copy; oral evidence is permitted only in rare occasions.

Best evidence rule insists production of original (i.e., primary evidence) when it exists. ‘Oral evidence as to the contents of a document is admissible only in rare occasions’. It is the purposive layout and scheme of the Evidence Act – as emanated from Sections 59, 61, 62, 64, 65 and 144.

Sec. 59 of the Evidence Act reads as under:

“59. Proof of facts by oral evidence: All facts, except the contents of documents or electronic records, may be proved by oral evidence.”

Sec. 61 of the Evidence Act reads as under:

61. Proof of contents of documents.—The contents of documents may be proved either by primary or by secondary evidence.

Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court.

Sec. 64 of the Act requires that that the documents are to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.

Sec. 65 clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.

Sec. 144 of the Evidence Act reads as under:

144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 22 says that oral admissions as to contents of documents are relevant if the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document.

Sec. 22A says as to oral admissions as to contents of electronic records as under:

“When oral admissions as to contents of electronic records are relevant
Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”

‘Rule of Best Evidence’ – Sections 22, 59, 61, 62, 64 and 144 of the Evidence Act

These Sections of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.

The word ‘disposition’ is not a ‘term of law’ as observed in Pushpalatha N V v. V Padma, AIR 2010 Kant 124. It is said as under:

“The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”

Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.” (Quoted in Placido Francisco Pinto v. Jose Francisco Pinto, 2021-10 SCR 676; V Anantha Raju v. T M Narasimhan, AIR 2021 SC 5342)

In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:

“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).

Sec. 22 of the Evidence Act – Only a Declaratory Provision

Sec. 22 of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises one thing positively – excepting the circumstances exempted (when entitled to give secondary evidence, and the genuineness of a document is in question) oral admissions on contents of the document are not relevant. That is even if such an evidence is tendered it will be discarded.

Is the principle, ‘Oral admissions as to the contents of a document are not relevant’, (originally) emerged from Sec. 22?

The answer is, ‘No’.

Because:

Sec. 22 primarily refers to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’.
Sec. 22 is included in the sections that pertains to ‘Admissions’ (comes in Part I), in Chapter II, which speaks on ‘Relevancy of Facts’, and not in Part II that deals with ‘Proof’.
As the marginal note (or heading) denotes, it is meant for setting forth – ‘When oral admissions as to contents of documents are relevant’. Two circumstances are laid down in Sec. 22. They are:
- (i) When the party proposing to prove the contents of a document is entitled to give secondary evidence of the contents of such document under the rules “hereinafter contained“, and
- (ii) When the genuineness of a document produced is in question.
Therefore, it is clear that we have to resort to other provisions of the Evidence Act (Sections 59, 61, 62, 64, 65 and 144) to see the ‘entitlement’ (as to) – ‘When a party to the litigation can give secondary evidence of the contents of such document’.

Sec. 22 – Variance from English Law on Admission of Contents of Document

In Perumal Chettiar v. Kamakshi Ammal, (1938) 2 MLJ 189, it is observed, with reference to Sec, 22 Evid. Act, as under:

23. Tyte v. Jones (referred to in the foot-note to Farr v. Price (1800) 1 East. 55 : 102 E.R. 22) seems to rest on another principle of the English law which the Indian Legislature had deliberately departed from, in enacting Section 22 of the Evidence Act. The proof that was permitted in Tyte v. Jones was to the effect that when the money for which the unstamped promissory note had been given was demanded of the defendant, he acknowledged the debt. This is explicable in the light of the rule supported by some authority in England that admissions by a party, even when proved by parol evidence, constitute an exception to the ‘best evidence’ rule (see Singleton v. Barrett (1832) 2 C. & J. 368 : 149 E.R. 157). This view has been criticised even in England (see Taylor on Evidence, Sections 410 to 412), and Section 22 of the Indian Evidence Act adopted the stricter view and relegated ‘oral’ admissions as to the contents of a document to the category of “secondary evidence”.

“Better Evidence” Rule in English Law – Despite Admission of Contents of Document

Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 ShimLC 341, referred English decisions on insistence of “better evidence”, as under:

“Greenleaf in his evidence at page 82 explained and stated the rule thus:
- ‘.. A fourth rule which governs the production of evidence that which requires the best evidence of which the case, in its nature, is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact but its design to prevent the introduction of any, which from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when it is apparent, that the better evidence is withheld, it is fair to presume that the party has some sinister motive for not producing and that if offered, his design would be frustrated….’
In Earl of Suffolk v. Greenwill, Ch. Rep. 89 (92), the Court ruled that it was dangerous to admit the contents and sufficiencies of deeds to be proved by the testimony of witnesses, the construction of deeds being the office of the Court. Tinterden, L.C.J. in Vincent v. Cole, M & M. 257, observed:
- ‘I have always (perhaps more so than other Judges), acted most strictly on the rule that what is in writing shall be proved by the writing itself. My experience has taught me the extreme danger or relying on the recollection of the witnesses, however, honest, as the contents of the written instruments; they may be so easily mistaken that I think the purposes of justice require the strict enforcement of the rule’.”

Rule of ‘Next Best Evidence’

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
Jagdamba Tea Factory Vs. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17,
2008-1 RCR (RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that the copy of a deed of transfer is not ordinarily a document of title for the purposes of an equitable mortgage, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Best Evidence Rule insists evidence of High Probative Value

Though various kinds of secondary evidences are provided under Sec. 63, the probative value of one kind (say, a photograph of an original, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists evidence bearing high probative value.

Part II

When Document Available, Oral Evidence NOT admitted; Even if Admitted, NO use

Oral Admission of Witnesses on document is Bad and Barred in Indian Law as that of ‘hearsay evidence’.

Will Erroneous or Misguided Oral Evidence on Contents of a Document Harm its Author? No. Because, such evidence is ‘irrelevant’.

It is beyond doubt that ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’ (Shiba Sankar Nanda v. Padmini Naik ILR 2011-1 Cut (Ori) 792).

When Document Available, Oral EVIDENCE as to its Contents Discarded. Oral evidence as to the contents of a document is admissible only in rare occasions. As observed in Shiba Sankar Nanda v. Padmini Naik, ILR 2011-1 Cut (Ori) 792, ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’. Sections 22, 59, 61, 62, 64, 65 and 144 of the Evidence Act support this view.

Sec. 22 – If Document Available, Oral ADMISSIONS of its Author Ignored. Sec. 22 of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises one thing positively – excepting the two circumstances exempted (when entitled to give secondary evidence and the genuineness of a document is in question) oral admissions on contents of a document (i.e. admission by its author or a person under him) are not relevant. In other words, even if such an evidence is tendered it will not be looked into by the court.

Sec. 22 primarily pertains to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’. Because, Sec. 22 is included in the sections that deal with ‘Admissions’; and it comes in Part I, Chapter II, which speaks on ‘Relevancy of Facts’; and not in Part that relates to ‘Proof’, that is Part II. It is further clear from the marginal note (or heading) of Sec. 22 (‘When oral admissions as to contents of documents are relevant’).

At the same time it must be seen that Section 22 marches in Chapter II, which speaks on ‘Relevancy of Facts’. Sec. 5 raises a total bar to irrelevant ‘evidence’. Sec. 5 of the Evidence Act reads as under:

“Section 5: Evidence may be given of facts in issue and relevant facts:
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”

Therefore, Sec. 22 bars the author and persons under him from giving oral evidence as to contents of the document, if the document is available.

Bulk of Evidence Waste Time and Space of the Courts

It is very important to note that the oral statements of witnesses as regards the contents in an admitted document is irrelevant and therefore liable to be eschewed. Therefore, such statements could not harm or benefit the party to the suit or the maker thereof. Still, it is a sheer fact that bulk of such evidence is adduced in court wasting the time and space of the courts.

Statements of Witnesses as Explanation of Admitted Document is also Excluded. As already shown, the oral statements of witnesses as regards the contents in an admitted document is irrelevant; and therefore they are liable to be eschewed. Further, Sec. 93 and 94 speak as to exclusion of evidence (i) that intend to ‘explain or amend ambiguous document’ and (ii) that stands ‘against application of the document to existing facts’.

Sec. 93 and 94 speaks as to exclusion of evidence.
Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.

Interpretation of Documents (Except Wills) – Provisions under Evidence Act

Produce Document itself (Sec. 91); and No oral evidence can be given –

(i) for varying, adding to, etc. its terms (S. 92).
(ii) to explain a document, on its face, ambiguous (S. 93).
(iii) to show a plain document not meant to apply such facts (S. 94).

Evidence can be given –

(i) to show language of a plain – (but) unmeaning to facts – document is used in a peculiar sense (S. 95).
(ii) to show language used – (though) applies to several persons – in a document apply to one only (S. 96).
(iii) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets (S. 97).
(iv) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets (S. 97).
(v) to show the meaning of illegible characters of technical expressions of words used in a peculiar sense (S. 98).

Interpretation of Wills

.(i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
(ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.

Sec. 93 to 100 Evidence Act read as under:

93. Exclusion of evidence to explain or amend ambiguous document. –– When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
94. Exclusion of evidence against application of document to existing facts. –– When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
95. Evidence as to document unmeaning in reference to existing facts. –– When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
96. Evidence as to application of language which can apply to one only of several persons. –– When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies. –– When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
98. Evidence as to meaning of illegible characters, etc. –– Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
99. Who may give evidence of agreement varying terms of document. –– Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.
100. Saving of provisions of Indian Succession Act relating to wills.––Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills

Part III

EXCEPTIONS to the Rule of Irrelevancy of Oral Evidence on Documents

Sec. 92 Evidence Act reads as under:

92. Exclusion of evidence of oral agreement—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms

Following are the exceptions in Sec. 92 Evidence Act to the general rule as to bar of oral evidence on contents of documents:

Provisos to Sec. 92:
- Proviso (1). –– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.
- Proviso (2). ––The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
- Proviso (3). ––The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
- Proviso (4). ––The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
- Proviso (5). –– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
- Proviso (6). –– Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.)) This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Secondary evidence allowed only when permitted under Sec. 65

Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Sec. 62 says that Primary evidence means the document itself produced for the inspection of the Court.

Sec. 63 lays down the mode of secondary evidence permitted by the Act. It reads as under:

“63. Secondary evidence means and includes—
- (1) Certified copies given under the provisions hereinafter contained;
- (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
- (3) Copies made from or compared with the original;
- (4) Counterparts of documents as against the parties who did not execute them;
- (5) Oral accounts of the contents of a document given by some person who has himself seen it.”

As pointed out earlier, Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Clauses (a) to (g) of Sec. 65 delineate the cases in which secondary evidence relating to documents may be given. They read as under:

(a) when the original is shown or appears to be in the possession or power –– of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

Oral Evidence on ‘Sham’ Document

Section 92 of the Indian Evidence Act, 1872 directs exclusion of evidence or oral agreement as to the terms of any contract. But, under the first proviso to Section 92 any fact that may invalidate any document, such as fraud, intimidation, illegality, want of due execution can be led into evidence. It permits the plaintiff to assert that the document was never intended to be acted upon and the document is a sham.

Read Blog: Void, Voidable, Ab Initio Void, and Sham Transactions

The question as to ‘sham’ nature arises only when one party asserts that there has been a different transaction altogether than what is recorded in the document. Oral evidence is admissible in law for that purpose. [See: Placido Francisco Pinto v. Jose Francisco Pinto, 2021 SCC OnLine SC 842. Referred: Smt. Gangabai v. Smt. Chhabubai (1982) 1 SCC 4, and Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595].

In Roop Kumar it is held as follows:

“22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.”

Construction of a Document Raises a Question of Law

In Sir Chunilal V. Mehta v. The Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, it is observed as under:

“Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law.”

In Hero Vinoth Minor v. Seshammal, AIR 2006 SC 2234, it is observed as under:

“It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an ‘easement of necessity’ thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law.”

Part IV

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)

Oral Evidence must be Direct; Hearsay Evidence, Inadmissible

As per the Evidence Act (Sec. 3), ‘evidence’ means and includes oral evidence and documentary evidence. As stated earlier, Sec. 59 of the Evidence Act says that all facts, except the contents of documents or electronic records may be proved by oral evidence. Sec. 60 directs that the oral evidence must be direct.

Best available evidence must be produced; If Not, Adverse Presumption will be Taken

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal v. Badkulal, AIR 1953 SC 225; A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P., AIR 2003 SC 3024; Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

“It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

“13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient. (See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

“22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

“28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.

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Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?

Saji Koduvath.

It is a fact that certain weaker sections of the citizens of India suffer from their caste identity. The policy of reservation of employment in government-jobs, and fixing quotas/seats in educational institutions, legislatures etc., are ensured to these people by the Constitution of India itself. It is with the view to uplift this weaker section, who faced with the ‘historical injustice’ and the ‘age-old sufferings’.

Why No Reservation to Backward Muslims and Christians (SCs/STs/Dalits)?

As observed in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217, the Christianity does not acknowledge caste system. The same is the case of Muslims also. Therefore, it is strongly argued that it cannot be said that the members of these religions suffer from any social indifference, disadvantage or apathy.

It is also seen pointed out that the denial is out of fear that:

(i) the extension would adversely affect the existing ‘reservation-quotas‘ for Hindu, Sikh and Buddhist SCs/STs;
(ii) the Christians and Muslims would benefit from both ‘SC/ST-advantages’ and ‘minority-rights‘; and
(iii) it would lead to sudden ‘mass conversion‘ from Hinduism, Sikhism and Buddhism to Christianity and Islam.

LEGAL AND CONSTITUTIONAL BARRIER

The Legal and Constitutional barrier to extending Reservation to Muslim and Christian SCs/STs (Dalits) is The Constitution (Scheduled Castes) Order, 1950.

The Constitution (Scheduled Castes) Order, 1950

In exercise of the powers conferred by clause (1) of article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, made the Order. Para 2 and 3 of the Order reads as under:

“2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in [Parts to [XXII], {XXIII}, XXIV of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.
[3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu [, the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste.] ”

COUNTER ARGUMENTS

1. The Constitution of India

The Presidential Order, 1950 was promulgated disregarding the binding edicts in the Constitution, such as the Preamble, Articles 14, 15, 25, etc..

The Constitution of India, in its Preamble itself secure to all its citizens “EQUALITY of status and of opportunity”.

Article 14 of the Constitution eloquently guarantees “Equality Before Law” as the most valuable Fundamental Right as under:

“14. Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 15 Prohibits discrimination as under:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Clause 4 of the Article 15 reads as under:

“(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

Article 25 declares the fundamental Rightto profess, practise and propagate religion as under:

“25. Freedom of conscience and free profession, practice and propagation of religion:
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) …..”

2. International Declarations, Covenants and Recommendations

The Presidential Order, 1950 stands against Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Report of the Committee on the Elimination of Racial Discrimination etc..

Article 2 of the Universal Declaration of Human Rights reads as under:

“Freedom from discrimination: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Article 2 of the International Covenant on Civil and Political Rights Adopted on 23 March 1976,reads as under:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
Each State Party to the present Covenant undertakes:
- (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
- (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
- (c) To ensure that the competent authorities shall enforce such remedies when granted.”

The United Nations’, ‘Report of the Committee on the Elimination of Racial Discrimination’, Seventieth session, 19 February -to- 9 March 2007, reads as under:

“179. The Committee notes with concern that Dalits who convert to Islam or to Christianity to escape caste discrimination reportedly lose their entitlement under affirmative action programmes, unlike converts who become Buddhists or Sikhs (arts. 5 (d) (vii) and 2 (2)).
The Committee recommends that the State party restore the eligibility for affirmative action benefits of all members of scheduled castes and scheduled tribes having converted to another religion.”

3. Reports of Various Commissions and Committees Appointed by the Government of India

The Government of India appointed several commissions and committees to make recommendations on the situation of the SCs and STs. The following important commissions considered the ‘discriminatory exclusion’ of eligible groups from the list of ‘scheduled casts/tribes’:

Report of Backward Class Commission headed by Kaka Kalelkar, , 1955
Parliamentary Committee on Untouchability, Economic and Educational Advancement of the Scheduled Castes (L. ElayaPerumal Commission Report) 1969
Report on Minorities by High Power Panel on Minorities, SCs and STs & Other Weaker Sections, Ministry of Home Affairs, Government of India, New Delhi, 1983
Mandal Commission Report of the Backward Classes Commission, 1980.
National Commission to Review the Working of the Constitution (NCRWC)(Justice MN Venkatachaliah Commission), 2002
National Commission for Religious and Linguistic Minorities – NCRLM: (Ranganath Misra Commission), 2007
The National Commissions for Scheduled Castes, 2004 (chairperson: Suraj Bhan), 2007 (chairperson: Buta Singh); 2010 (chairperson: P. L. Punia); 2013 (chairperson: P. L. Punia).

Justice Ranganath Misra Commission, 2007 recommended, inter alia, as under:

“Para 3 of the Constitution (Scheduled Castes) Order 1950:
16.3.4: We recommend that Para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely delink Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.”

The National Commission for Scheduled Castes, on 22nd April 2010, had endorsed the recommendation of the NCRLM concerning the deletion of Paragraph 3 of the Constitution (Scheduled Castes ) Order 1950 for extending the Scheduled Castes status to Christians and Muslims of Scheduled Castes Origin.

National Commission to Review the Working of the Constitution (NCRWC), 2002, stated as under:

“In view of the fact that in some parts of the country particularly in the south converts to Christianity from specific SCs are subjected to crimes and atrocities as their exact Hindu counterparts are (difference of religion making no difference in this regard) and the fact that trials in such cases get bogged down on the issue whether this is an atrocity since they are not SC on account of conversion. Clause (c) of section 2 of the Act should be amended by adding the following words at the end of it and converts to Christianity from Scheduled Castes.”

L. ElayaPerumal Commission Report (“All Scheduled Castes who convert to religions other than Hinduism should be given all concessions available to Scheduled Castes”), Kaka Kalelkar Report, and Mandal Commission Report, emphatically recommended that the Dalit Muslims and Dalit Christians should be included as the Scheduled Caste.

4. Supreme Court Decisions – One continues to be SC even after conversion

1. In Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217, it was observed as under:

“Though Christianity does not acknowledge caste system, the evils of caste system in some States are as prevalent as in Hindu society especially among the converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc. Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Christians and Harijan Christians etc. That is to say all the converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels. Like Hindus, they interact and have their familial relationship and marital alliances only within the converted caste groups.” (Referred to in: The State of Punjab vs Davinder Singh, 27 August, 2020: Arun Mishra)

2. In Puneet Rai v. Dinesh Chaudhary, (2003) 8 SCC 204, S.B. Sinha, J. pointed out as under:

“30. In Caste and the Law in India by Justice S.B. Wad at p. 30 under the heading “Sociological Implications”, it is stated:
- “Traditionally, a person belongs to a caste in which he is born. The caste of the parents determines his caste but in case of reconversion a person has the liberty to renounce his casteless status and voluntarily accept his original caste. His caste status at birth is not immutable. Change of religion does not necessarily mean loss of caste. If the original caste does not positively disapprove, the acceptance of the caste can be presumed. Such acceptance can also be presumed if he is elected by a majority to a reserved seat. Although it appears that some dent is made in the classical concept of caste, it may be noticed that the principle that caste is created by birth is not dethroned. There is also a judicial recognition of caste autonomy including the right to outcaste a person.”
31. If he is considered to be a member of the Scheduled Caste, he has to be accepted by the community. (See C.M. Arumugam v. S. Rajagopal, [1976] 1 SCC 863 and Principal, Guntur Medical College v. Y. Mohan Rao, [1976] 3 SCC 411).
32. A Christian by birth when converted to Hinduism and married a member of the Scheduled Caste was held to be belonging to her husband’s caste on the evidence that she had not only been accepted but also welcomed by the important members, including the President and Vice-President of the community (See Kailash Sonkar v. Maya Devi, [1984] 2 SCC 91).”

3. State of Kerala v. Chandra-mohanan, (2004) 3 SCC 429, AIR 2004 SC 1672, in a matter arose under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it is held as under:

“We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion person ceases to be a member of scheduled tribe, but the question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as such a question would depend upon the fact of each case. In such a situation, it has to be established that a person who has embraced another religion is still suffering from social disability and also following the customs and tradition of the community, which he earlier belonged to. Under such circumstances, we set aside the order under appeal and remit the same to the Sessions Court, Palakkad, to proceed in accordance with law.”

4. In E.V. Chinnaiah vs State of Andhra Pradesh, (2005) 1 SCC 394, it is observed that the Scheduled Caste consists of not only the people who belong to some backward caste but also race or tribe or part of or groups within castes, races or tribes (State can also make subclassification); they are not merely backward but the backwardmost; and that a person even does not cease to be a Scheduled Caste automatically even on his conversion to another religion. [This decision is now stood referred to 9 judge bench (on the question: whether State can also make subclassification) by virtue of the 5 judge bench decision in The State of Punjab v. Davinder Singh, 2020-8 SCC 1.]

5. In The State of Punjab v. Davinder Singh, 2020-8 SCC 1, also it is accepted that a person does not cease to be a member of the Scheduled Caste, automatically, on his conversion to another religion. (The bench relied on Punit Raj v. Dinesh Dhaudhary and State of Kerala v. Chandra-mohanan).

6. National Council of Dalit Christians v. Union of India is the latest case (2019), that is admitted in the Supreme Court, challenging the The Constitution (Scheduled Castes) Order, 1950. It is pending, with the Order: “Tag with Writ Petition (Civil) No. 180 of 2004, Diary No.832 of 2020, and connected matters, if any”.

5. SC/ST Election Cases – Christian is one who ‘Profess’ Christianity

M Chandra Vs. M Thangamuthu, AIR 2011 SC 146

The Supreme Court held in this case that ‘the burden of proof lay squarely on the Election petitioner to show that the appellant indeed practiced and professed Christianity’ and that ‘the Election petitioner has not been able to prove conclusively that the appellant professes Christianity’. With respect to the meaning of ‘profess‘ in Clause (3) of the Constitution (Scheduled Castes) Order , 1950 the Court referred the following decisions:

Karwade v. Shambhakar, AIR 1958 Bom 296, to enter publicly into a religious state and that for this purpose a mere declaration by person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient.
Punjabrao v. D.P. Meshram, [(1965) 1 SCR 849], followed Karwade v. Shambhakar, above.
Perumal Nadar Vs. Ponnuswamy, (1970) 1 SCC 605: A bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.
Ganpat v. Returning Officer, (1975) 1 SCC 589: Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths. Hinduism is so tolerant and Hindu religious practices so varied and clectic that one would find it difficult to say whether one is practising or professing Hindu religion or not.
Kothapalli Narasayya vs. Jammana Jogi AIR 1976 SC 937: C.M. Arumugam vs. S. Rajgopal, (1976) 1 SCC 863: Consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member.
S. Anbalagan vs. B. Devarajan, AIR 1984 SC 411: (1984) 2 SCC 112: No particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. He regains his caste unless the community does not accept him. He never lost his caste in the first instance when he embraced another religion. The mark of caste does not seem to really disappear even after some generations after conversion.
Kailash Sonkar vs. Smt. Maya Devi,(1984) 2 SCC 91 : A member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism. In such a case, revival of the caste is not depended on the views of the members of the community of the caste concerned, although the views of the members of the community would be an important factor. It would automatically revive on her reconversion. If too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Christian parents had baptised her at a time when she was still a minor and knew nothing about the religion. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.

Kodikunnil Suresh @ J. Monian vs N.S. Saji Kumar, (2011) 6 SCC 430

The Supreme Court found that the High Court was right in coming to the conclusion that the appellant was born to Christian parents has not been seriously disputed by the appellant. But, it was held that the appellant had been elected four times from the Adoor Parliamentary Constituency reserved for the Scheduled Caste was a very strong circumstance to establish that he had been accepted by the members of his caste after his reconversion to Hinduism. On this finding it was held that his nomination was validly accepted by the Returning Officer. The Court referred, among other, the following decisions:

Kailash Sonkar v. Smt. Maya Devi, [(1984) 2 SCC 91]: A member of the Scheduled Caste, who is converted into Christianity and after she attains the age of discretion, can decide of her own volition to re-embrace Hinduism.
S. Anbalagan v. B. Devarajan, AIR 1984 SC 411: [(1984) 2 SCC 112] The precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for re-conversion to Hinduism of a person who had earlier embraced another religion and unless the practice of the caste makes it necessary, no expiatory rites need be performed.
Perumal Nadar v. Ponnuswami, [1970 (1) SCC 605]: A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism but a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion and no formal ceremony of purification or expiation is necessary to effectuate conversion.
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, (1954 SCR 817): Vivian Bose, J. : What is to be determined is the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.
S. Rajagopal v. C.M. Armugam, [1969 (1) SCR 254]: The law relating to acceptance of a person by members of caste to which the appellant originally belonged after his reconversion to Hinduism has been laid down.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society/Trust

‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws

Saji Koduvath, Advocate, Kottayam.

Section 11 and 12 of the Contract Act

Under Section 11 of Indian Contract Act, 1872, for executing a valid contract, the parties to the same should be of sound mind. Section 11 and 12 of the Contract Act reads as under:

“Sec. 11. Who are competent to contract:-Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
Sec. 12. What is a sound mind for the purposes of contracting.—A person is said to be of sound mind for the purposes of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interest.
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.”

Contract by a person of Unsound Mind is Void as that of a Minor’s contract

In RD Somasundaram Pillai, by next friend S. Bhuaneswar v. S. Janaki Ammal, 1955-1 MLJ 310, it was observed that a contract by a person of unsound mind is void as that of a minor’s contract. Both are void ab initio and there is no need therefore in any suit or proceeding where such persons seek relief to have the cancellation of such a document. They might ignore the existence of such a document as being void and of no effect and proceed to establish their right to other reliefs consequent on the transaction being void. (Also see: J. Kasthuri v. Seth Ghanshamdas Vonsimal Deva Bank, 1979-2 MLJ 11; Muhammad Khalilur Rahman Khan v. Mohammad Muzammilullah Khan, AIR 1933 All. 468)

Onus to Prove Unsound Mind

In a matrimonial case alleging schizophrenia, in Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260, it was observed that the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.

In Sudama Vs Rakshpal Singh, 2013-6 ADJ 714: 2013-99 All LR 351, pointed out that the onus to prove that a person is of unsound mind would be upon the party who alleges it.

In Subrah-manya Sastry v. Lakshmi-narasamma, AIR 1958 AP 22, held as under:

“A lunatic is not a person who is continuously in a state of unsoundness of mind and once it has been established that a person is a lunatic, the burden of proof is on the party who alleges that a document he relies on as having been executed by the alleged lunatic was executed by him during a lucid interval“.

Sound-mind: Criterion is Capability to understand, rationally

In R. Kameswara Rao v. B. Suryaprakasa Rao, AIR 1962 AP 178, it was observed, in the context of Section 59 of Succession Act, 1925, that the words ‘sound mind’ does not mean that the testator should have his mental faculties in their fullest vigour, but he should have the capacity to understand nature of his property, the memory to remember the relations and persons normally having claims on his bounty and also a judgment of his own in making the dispositions. In Sudama Vs Rakshpal Singh, 2013-6 ADJ 714; 2013-99 All LR 351, it was opined that this proposition can be applied to a case of contract also with appropriate modification.

In Mahomed Yakub v. Abdul Quddus, AIR 1923 Pat 187 it was laid down as under:

“….. the test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest, . There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test …..Mere weakness of mind is not sufficient…..” (Quoted in: Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491.)

In Amina Bibi v. Saiyid Yusuf, AIR 1922 All 449, It is held as under:

“Not being in a position to understand or to determine rationally whether it was likely to operate to his benefit by reassn of his mental condition, the lease must be held to be void and unenforceable.” (Quoted in: Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491.)

In Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491, it was observed that the party contracting must have the capacity to arrive at a reasoned judgment as to the consequences of the contract he is entering into; and it was pointed out that it did not necessarily, mean that a man must be suffering from lunacy to disable him from entering into a contract. It held further as under:

“A person may to all appearances, behave in a normal fashion, but, at the same time, he may be incapable of forming a judgment of his own, as to whether the act he is about to do is to his interest or not, and to the contracts of such a person the law gives protection.”

Capability to understand rationally, whether a transaction undergoing is likely to operate to his benefit or otherwise is the criterion to determine the ‘soundness’ of his mind.

See: Amina Bibi v. Saiyid Yusuf, AIR 1922 All 449.
Ramesh Chandra Das v. Lakhan Chandra Das, AIR 1961 Cal. 518,
Gordhandas Nathalal v. Bai Suraj, AIR 1921 Bom 193,
Rajkumar Sen Chowdhury v. Ram Sundar Shaha, AIR 1931 PC 69.

Not mean – incumbent must be of a very intelligent mind set

In AEG Carapiet v. AY Derderian, AIR 1961 Cal 359, PB Mukharji, J., observed that, sound mind did not mean that incumbent must be of a very intelligent mind set; that the test of a sound mind could not be stretched to an absurdity; and it was not the test of a perfectly healthy and perfect mind. It was pointed out that the test of a sound disposing mind was, in law, a workable test, which meant, in plain language, an appreciation of fact that the man was making a will, an appreciation of the contents of that will and an appreciation of the nature of disposition that he was making having regard to the claim of affection and family relationship and claims of the society or community to which he belonged to. It was held that it was neither a hypothetical nor an impracticable test, as it was not the test of a psychologist or a psycho-analyst or a psychiatrist who in the modern age is prone to consider all human mind to be inherently unsound by nature and abnormal; nor was it the too Scientific test which would satisfy the highest technical medical examinations.

Limitation

In view of Section 12 of the Indian Contract Act, the act of disposition or contract will be void for want of competency to contract, due to the un-soundness of mind, from its very inception. In Musammat Amina Bibi v. Saiyid Yusuf .70 Ind Cas 968: ILR (1922) 44 All 748, it was held that no question of limitation arises in such a matter because it was void from its very inception.

Presumption in favour of Sanity

In Mahomed Yakub v. Abdul Quddus, AIR 1923 Pat 187, it was held as under:

“….. The test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest. There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test …..Mere weakness of mind is not sufficient…..” (This decision is followed in Indar Singh v. Parmeshwardhari Singh, AIR 1957 Pat 491.)

‘Schizophrenia’, and Unsound mind

In Sudama v. Rakshpal Singh, 2013-6 ADJ 714; 2013-99 All LR 351, it was observed that even if it was assumed that a person suffered ‘schizophrenia’, that itself would not justify an inference that he was a person of ‘unsound mind’ so as to render him incapable of understanding the things as are perceived by a person of ordinary prudence and understanding. The High Court relied on Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 226. The Apex Court decision was followed in BN Panduranga Shet v. SN Vijayalaxmi, AIR 2003 Kant 357, Vinita Saxena v. Pankaj Pandit, AIR 2005 Delhi 243.

In Clara Auroro de Brangenca v. Sylvia Angela Alvares, AIR 1985 Bom 372, it was observed that the acts done by a person who was suffering ‘schizophrenia’ of violent nature to the extent that he was admitted in Mental Hospital and was released on Parole, it could not be said that act, his transaction would be valid under Section 12 of the Contract Act, 1872.

Presumption on a Registered Document

As per Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. According to Section 114 (e) there is a presumption that the judicial acts and official acts have been regularly performed.

Section 32 of the Registration Act states as to who shall present a document for registration. Section 34(3) states that the Registering Officer shall thereupon:

“(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
(b) satisfy himself as to the identity of the persons appearing before him and alleging that he has executed the document.”

Section 35 provides that if the person executing the document appears personally before the registering officer and personally known to him, or if he be otherwise satisfied that he is the person, admits the execution of the document the registering officer shall register the document in accordance with sub-rule (2). The Registering officer may, in order to satisfy himself that the person appearing before him is the person he represent himself to be, or for any other purpose contemplated by this Act, “examine the person present before him in his office.” The Act further lays down that if any such person appears to the registering officer to be a minor, an idiot or a lunatic, the registering officer shall refuse to register the document. Section 36 confers the registering officer the power to enforce the appearance of executant and the powers of the civil court in that regard. The endorsement under Section 58 is made by the Registrar after satisfying with the statutory requirements.

Registered Documents: Presumption – Genuineness

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:

“The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

the date, hour and place of presentation of the document for registration :
the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

Is there Presumption as to Truth on Registered Will

On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 as under:

“The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …

The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:

“If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”

Registered deed: Presumption – Validly Executed

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, as under:

“52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293, also it is a observed that a registered document carries with it a presumption that it was executed in accordance with law. The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72, as under:

“A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
- “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “

Registration Certificate is a mode of proof under Section 67 Evidence Act

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:

“The Privy Council said in Gangamoy Debi v. Troilukhya Nath (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC) – ‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) : “… It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

In Thithumma v. Rukhiya Umma, 2012-2 KLT(SN) 111 it is observed that normally a person is presumed to be sane and capable of understanding the things and the acts he does and to judge its consequences; such a normal man will not sign or execute a document unless he understands the effect and impact of that document upon his interest and the consequences thereof; and that this is the common course of human conduct or common course of public or private business. So, ‘if a person wants to abrogate this natural course of public or private business or conduct on the basis of any unusual or extra ordinary circumstance’, he must allege and prove that circumstance. It is further pointed out in this decision that in view of Section 114(e) of the Indian Evidence Act and Sections 32 to 36 of the Registration Act if a document is registered, it could be legally presumed that the registering officer had registered the document after satisfying that the executant was not a lunatic ie. the executant, was capable of understanding the document and forming a rational judgment as to its effect upon his interest; unless the above presumption is rebutted or abrogated by cogent and convincing evidence so as to hold otherwise.

Non-Examination of Registrar

No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

No Detailed Enquiry under Order XXXII Rule 15 CPC

Judicial enquiry in court is sine qua non to determine, whether the alleged person of unsound mind is incapable of protecting his interest, by reason of any mental infirmity, before the return of the plaint filed against a person of unsound mind, under Order XXXII Rule 15 of the Code of Civil Procedure. The court shall examine the person, allegedly of unsound mind, by asking questions and an opportunity can be given to the party, who applies for appointing guardian also to put questions, if the party wants to do so, to test whether he is incapable to protect his interest when suing or being sued. The court has no power to return the plaint or interlocutory application seeking appointment of guardian, without numbering it, for want of medical records to prove the unsoundness of mind (Sijo Varghese Vs. Dona B. Daisy, 2019-4 Ker HC 806).

Following Marci Celine D-Souza v. Renie Fernandez, 1998-1 Ker LT 888, and referring to Pankajaksha Kurup v. Fathima, 1998-1 Ker LT 668, it is observed in Krishnankutty v. Veena MG, AIR 2012 Ker 166, that there is no necessity for conducting a detailed enquiry under Order XXXII Rule 15. It is pointed out that the position is not the same if such a person figures as the defendant in a suit and a decree is obtained against him without a guardian appointed for him; and that it is well settled that a decree against a lunatic without a guardian being appointed to represent such lunatic, is a nullity and it is not even necessary to set aside such decree and a prayer for declaration that such decree is null and void will be sufficient.

See also: Koshalya v. Rama Devi, 2011 1 Him. LR 227;
Lakshmi v. Ajay Kumar, 2006 AIR P&H 77
Harjinder Singh v. Nachhattar Kaur, 1991 PLJ 565.
Syed Hassan Baffakki Thangal v. Kalliath Thazha Chirutha, AIR 1988 Ker 160;
Godawari Devi v. Smt. Radha Pyari Devi, AIR 1985 Pat 366;
Samalla Krishnamurthy v. Samala Sasila, AIR 1983 AP 174;
Asha Rani v. Amrat Lal, AIR 1977 P&H 28;
Ram Chandra v. Man Singh, AIR 1968 SC 954,
S. Chattanatha Karayalar v. Vaikuntarama Karayalar, AIR 1968 Mad 346;
Nanak Chand v. Banarsi Das, AIR 1930 Lah 425.

Validity of Mental Condition – when one enters into the contract

When the validity of a contract arises for consideration, the crucial thing is whether at the relevant time the delinquent was capable of understanding it and forming a rational view as to its effects upon his interest. From Section 12, as held in Nilima Ghosh v. Harjeet Kaur, AIR 2011 Del 104, the soundness of mind of a person has to be seen at the time when he enters into a contract and it matters not if such a person is usually of unsound mind but occasionally of sound mind or, is usually of sound mind but occasionally of unsound mind.

‘Unsound mind’ in Marriage Laws

In Lakshmi v. Dr. Ajay Kumar, AIR 2006 P & H 77, it is observed that merely on proof that a person long ago at one stage of his life suffered from schizophrenia would not result into an inference that he was a person of unsound mind. Rajinder Kaur V/s. Mangal Singh, 1987 (1) PLR 444, was referred to in this decision wherein it was observed that even if a man was suffering from schizophrenia, in the absence of a positive statement made by a doctor that he was treating a person of unsound mind, it cannot be treated that such a person was lunatic. It is pointed out in this decision that in the Ram Narain Gupta’s case (AIR 1988 SC 2260) it was held that unsoundness of mind as used in Section 13(1)(iii) of the Hindu Marriage Act, 1955, require the assessment of the degree of the mental disorder and all mental abnormalities are not recognized as ground for grant of a decree of divorce, and that the Supreme Court also shared the concern of the medical word against too readily reducing a human being into a functional non-entity and as a negative unit in family or society by observing that it is the concern of law as well which has been recognized by section 13(1)(iii).

Sec. 5(ii) of the Hindu Marriage Act lays down the conditions for a Hindu Marriage. One of the same is that neither party must be incapable of giving valid consent in consequence of unsoundness of mind or has been suffering from mental disorder.

Sec. 13(1), clause (iii) and Explanations (a) and (b) read as follows:

“S.13, Divorce:– (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party …….
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder or such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.- In this clause,
(a) the expression ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression ‘psychopathic disorder’ means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or …”

Assessment of the degree of the ‘mental-disorder’

The Supreme Court, in Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260, held that the wife, who was suffering from Schizophrenia, could not be held to be lunatic. It was observed that the petitioner was reasonably expected to live with the respondent. after quoting Sec. 13 Hindu Marriage Act, it is held in Ram Narain Gupta v. Smt. Rameshwari Gupta, AIR 1988 SC 2260, as under:

“10. The context in which the ideas of unsoundness of ‘mind’ and ‘mental-disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental-dis-order. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of Decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.”

The court laid down further as under:

“25. Schizophrenia , it is true, is said to be difficult mental affliction. It is said to be insidious in its onset and has hereditary predisposing factor. It is characterised by the shallowness of emotions and is marked by a detachment from reality. In paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions.
26. Schizophrenia is described thus : A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterised by prominent delusion; and catatonic, with marked motor disturbances (see catatonia). Schizophrenia commonly – but not inevitably – runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness.
27. But the point to note and emphasise is that the personality disintegration that characterises this illness may be of varying degrees. Not all schizophrenics are characterised by the same intensity of the disease. F.C. Redlich and Daniel X. Freedman in “The Theory and Practice of Psychiatry” (1966 edn.) say : Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient, others may not interfere too seriously with many aspects of everyday living….. (p. 252) Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both ? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to non-deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity…..” (Quoted in Lakshmi v. Dr. Ajay Kumar, AIR 2006 P & H 77).

In Lissy v. Jaison, ILR 2000-2 Ker 37, it is observed as under:

“Term ‘unsound mind‘ is more comprehensive. Idiocy and lunacy are species of unsoundness of mind. Mental defectiveness falls chiefly under three grades known as idiocy, imbecility and feeble mindedness. Any state of mind which falls short of lunacy or idiocy cannot be a ground for annulment of marriage. Persons differ from one another in the degree of intelligence possessed by them; it would be a dire calamity if it could be said as a matter of law that a marriage entered into by a person who is neither a lunatic nor an idiot in a serious stage, because he or she lacks intelligence, although otherwise capable of understanding the nature of the bonds of matrimony into which he or she is entering or has entered. ‘Unsound mind’ or insane memories, which all persons must understand to be a depravity of reason, or want of it. (Per Hardwicke in C. Barnsley’s case: 2 Eq. Co. Ab 580).
‘There is an important difference between, ‘unsoundness of mind’ and ‘dullness of intellect’. Unsoundness of mind may arise from perversion of the mental power and may exhibit itself by means of delusion or strong antipathies, which is called ‘Mania’, or it may arise from what may termed a defect of mind, as where the mind was originally incapable of directing itself to anything requiring judgment, which is ‘idiocy’ or where a mind, originally strong, has become weakened by illness or age though producing no such insanity as to amount to mania. ‘Idiocy’ in general is very easily proved. It is manifested in a variety of ways by impropriety or indecency of conduct, dirtiness in the habits or by vacancy of aspect, though this last test can only be appreciated by those who have seen the party. Another testis by means of numbers, ie., by showing that the party cannot understand the commonest rules of arithmetic.’ (Per Wood V.C. in Harrod v. Harrow, 23 LTOS 243).”
9. … In order to appreciate meaning of the expression ‘incurably of unsound mind‘ and the test applicable in any such case, it has to be noticed that the state of mind envisaged is a degree of unsoundness, or incapacity of mind properly called insanity. The question is to be determined not upon wiredrawn speculations but upon tangible and established facts. It is important to notice that to bring a case within the ambit of clause (iii) of sub-s.(1) of S.13, mental disorder should be of such a kind and to such an extent that the applicant cannot reasonably be expected to live with the respondent.”

Medical evidence

In Kanhaiyalal v. Harsing Laxman Wanjari, AIR 1944 Nag 232, it was held as under:

“For the purposes of Section 12, Contract Act, the test of unsoundness of mind is whether the person is incapable of understanding the business concerned and its implications, and mere weakness of mind is not sufficient. In the absence of any medical evidence, it seems to me doubtful whether it can be held that Mahipati was by reason of unsoundness of mind incapable of entering into a contract on 27th July 1937.”

Court to form its own judgment; Medical testimony, only assistance and guidance

It is further held in Lissy v. Jaison, ILR 2000-2 Ker 37, as under:

“The gravity and importance of the issue requires that the Court ought to form its own independent judgment on the point. Medical testimony can be of considerably assistance and even guidance but the question is one for the Court and not for the experts and evidence of experts does not relieve the Court from the obligation of satisfying itself on the point beyond reasonable doubt. There should be strict enquiry into the matter. Court’s duty in this regard is very sensitive. The institution of marriage is of vital importance to society.”

End Notes

Appreciation of Evidence

Hospital Certificate and Circumstance (land sold at low price)

In Chacko v. Mahadevan, AIR 2007 SC 2967, the incumbent was found to be a person of unsound mind on the basis of a certificate of Mental Hospital, Trichur where he had been under treatment. There the land involved was sold for a very lower price by him. The Court took note of this circumstance, applied the maxim ‘res ipsa loquitur’ (the matter speaks for itself) and observed that this sale at a lower price itself showed that no person of sound mind and in his senses would have acted in such a manner.

Absence of continuous medical records

In a departmental action of dismissal of a constable, it is held in M. Dhanachandra Singh Vs. Union of India, 2020-2 Gau LT(MN) 65, the High Court at Manipur hesitated to act upon a medical certificate observing as under:

“Further, nothing has been produced to show that he was treated as inpatient in the said hospital. The absence of continuous medical records for the aforesaid period except for the certificate issued by the Doctor does not inspire confidence of the Court to accept the plea of the petitioner that he was indeed suffering from mental disorder during the aforesaid period.”

Declaration of unsound mind – requires a higher standard of proof

In Lalta Prasad (Deceased) v. Bhagwan Deen, 2020-1 All LJ 82, the High Court held that the issue regarding the declaration of a person as of unsound mind is a serious issue which required a higher standard of proof. The court evaluated the certificate issued by a doctor (a lecturer in Psychology in a Medical University) wherein it had been certified that the delinquent was suffering from Moderate Grade of Mental Retardation (Idiot) and that he could neither give nor recognise coins and upon the performance of tests of his mental age and intelligence quotient (IQ) was in the range of 42-45. It had been certified that he was incapable of managing his property. It had also been certified that the mental retardation could not have been cured by medicines. In cross-examination he indicated the following:

(i) That in order to ascertain the mental condition of the patient, an X-ray was taken. However, he could not recall whether he had advised to get an X-ray done or not.
(ii) He further stated that when delinquent was brought before him no other medical record was brought. He could not remember when he examined the delinquent and at that time how many other patients were available.
(iii) He tried to differentirate between a person being insane and being an idiot. He stated that he had given the certificate to the effect that the delinquent was an idiot and not insane.
(iv) He further submitted that there was a proforma for giving a certificate. However, the certificate issued was not on its usual proforma.
(v) He admitted that along with his certificate there were other prescriptions and tests which were conducted which were part of it. However, those documents upon and upon the basis of which he came to the conclusion that the delinquent was an idiot have not been filed on the record by the plaintiff-respondents.
(vi) He further stated that if he is given time he can bring the documents by which he had conducted the tests and had come to his conclusion. Though he was granted time but later he refused that he did not have those documents and, therefore, he could not bring the same on record.
(vii) He further stated that he himself had given advise to the brother of the delinquent that since the delinquent was an idiot, his property should be protected and keeping the same in mind he had incorporated this advise in the certificate.
(viii) He also clarified that in view of the tests so conducted, it was apparent that the delinquent was not able to count the coins nor he could recognise the coins and, therefore, this prompted the doctor to incorporate in his statement that he had the mental capacity of a 7 years old boy.
(ix) In his cross-examination, he admitted that the delinquent was also examined by a clinical Psychologist and he had also given his report, but he further noted that the report of the Psychologist was also not available on the record nor the certificate nor the details or the conclusions given by Psychologist were either filed nor such details were noted in the certificate issued.

Thereafter the High Court observed the following:

If the delinquent was a person of unsound mind by birth and that his brother had been taking care of him right from his younger age then something which strike at the face of it is that there is not a single medical prescription relating to him which indicates that he has been suffering from any mental ailment or that he had suffered from mental retardation from his childhood.
There is no explanation as to, while he was growing up and if he was not responding as a normal child then whether any medical advice was sought or he was treated and that during his childhood who was the doctor who had advised the sibling that his brother was mentally retarded.
There has been no evidence on record to the effect that he had been treated for any ancillary complication which required treatment.
The certificate is the sole document which has been brought on record and it will be relevant to point out that this certificate has been obtained from the said doctor after the institution of the suit.
Thus before instituting the suit, there was no material available which could be brought on record to indicate the illness or the ailment.
At the time of the institution of the suit, no material was brought on record to indicate that he was of unsound mind but the suit has been instituted casually without first seeking the permission of the Court to institute the suit, through the next friend.
The doctor could not explain why he had advised and incorporated in the certificate that it was being issued only for the purposes of protection of the property of the delinquent, that too after the institution of the suit.
Though there is a mention in the plaint that during the consolidation proceedings, he was declared as a person of unsound mind. There is no evidence on record.
Once the delinquent was present in the Court and the defendants deliberately sought an adjournment and the case was adjourned; the Court had made these observations which also corroborates the fact that the delinquent was not a person of sound mind as he was not able to answer or rather did not answer any question posed by the Court.
The fact remains that despite the same, no effort was made by either of the parties to produce the delinquent in Court on the subsequent dates.
Merely because the delinquent did not answer any question in Court does not reflect his mental condition to be determinative of the fact that the person was of unsound mind.
There can be various textures and shades of mental ailments but all of them are not to that extent which can hold a person to be of unsound mind so as to make him absolutely incapable of taking care of his own property and person.
If the sibling would have been taking care of the delinquent from his childhood as a person of an unsound mind, then from time to time there would have been prescriptions by doctors specialising in mental ailment.
Though it may be true that his mental retardation could not be cured by medicines, but the fact remains that medication is given to persons of such mental retardation in order to keep them calm and in control so that a person does not become aggressive and offensive towards others. There is no evidence to the effect that any such medication was given.
However, it is an admitted fact that the delinquent was not aggressive and not offensive to others.
It has also not been explained that if the delinquent was of that category who could not recognise the coins/currency nor could he be able to understand his good or bad then how did he explain that the defendants had abducted him and kept him in isolation and took his thumb impressions on stamp paper and plain paper to get the sale-deed executed.
The statement given in the plaint that the defendants misguided the delinquent on the pretext that they wanted to get his name incorporated in the property records and it is with the aforesaid allurement that they had abducted him also appears to be false. Since the name of the delinquent was already incorporated in the khatauni this allurement for such a person is absolutely farcical.
It would have been another things to say that a person whose mental age/capacity is that of 6-7 years and the defendants had tried to allure him with certain materialistic allurements such sweets, food, toys, clothes etc., perhaps it could have appealed more, but to specifically state in the plaint that the purpose of allurement was to get the name of the delinquent recorded in the property , for a person whose mental capacity is of 7 years and that such a person could not recognise the currency nor could count coins gives and makes a statement that he was abducted on the aforesaid pretext and that his thumb impressions were taken on stamp paper and plaint paper becomes difficult to believe.
Moreover, the plaintiffs had also stated that they had reported the abduction of the delinquent to the police and that it was also published in certain sections of the press also becomes doubtful. Since the copies of the newspaper reports which have been brought on record reports that one youth has been missing from last 15 days and it is apprehended that he has been abducted and might have been murdered. It further reports that the elder brother had reported the matter to the police wherein it was indicated that his ‘mental condition is not alright’. This terminology used apparently does not suggest that the delinquent was a person of unsound mind.
Even in the application which is the first reaction of the brother of the delinquent, it only indicates that the report has been made that the land of the delinquent is sought to be taken by the defendants but in the entire report made to the police there is not a whisper of the fact that the delinquent is a person of unsound mind and that his land is being sought to be usurped by the persons named.
On record, there is a Khasara which is also in the name of the delinquent. However, there is no mention of the fact that he is a person of unsound mind.
The record indicates that except for that one particular Khatauni which makes a mention that there is some orders of the consolidation officer by which the name of Vasudev was scored of and the name of the delinquent and his brother was incorporated and it was further mentioned that the delinquent is under the guardianship of his brother and he is a person of unsound mind, is the one solitary document.
There are other documents indicating the revenue entries in his name. In none of those revenue entries, there is any whisper regarding his mental incapacity. Similarly Khatauni is also in the name of the delinquent and in all the Khatauni entry, the name of the delinquent have been shown but it has not been mentioned that he is a person of unsound mind.
It is in this backdrop, if it is seen that one Khatauni wherein there is a mention of the fact that the delinquent is a person of unsound mind, then in all the subsequent Khataunies, the aforesaid endorsement in the entry should have been incorporated. This continuity which ought to have been present and natural, is missing. It is not corroborated by similar entry in the subsequent years.
However, in order to buttress the same, the plaintiff could not bring on record the order itself by which it was stated that the delinquent was declared as a person of unsound mind.
If the plaintiff got himself declared as the guardian of the delinquent in the consolidation proceedings, then that order at best could have been ordered declaring guardian ad litum. There is no other document which could indicate that one was ever declared as the next friend of the delinquent by a competent court as provided under the Indian Lunacy Act.
Since the delinquent had inherited the rights of his father in his personal capacity having a separate and identifiable share, and under the revenue laws his brother otherwise is not the natural guardian but the fact remains that in order to deal with the property of a person of unsound mind the brother ought to have sought his declaration in terms of the Indian Lunacy Act as it was prevalent at the relevant time when the litigation started in the year 1989 for which the district court has been granted power to make an acquisition in respect of a person alleged to be a lunatic for which Chapter-V and more particularly Sections 62, 63 and 65 of the Indian Lunacy Act are relevant.
From the record, it would indicate that the trial court while entertaining the plaint in the first instance did not look into the fact that the suit which was being instituted though next friend. There was no evidence worth its name at the time when the plaint was instituted to substantiate that the delinquent was a person of unsound mind.
The submission of the learned counsel for the respondent that since it examined the witnesses including the medical expert, this itself discharges the burden of the plaintiff and the entire onus rested with the respondent does not impress the court for the reason that where both parties had led evidence the burden of proof pales into insignificance. In the present case, this issue regarding burden of proof was not in controversy before either the trial court or the first appellate court. Both the courts had made independent assessment of the evidence and have come to different conclusion.
As already indicated above, the evidence led by the plaintiff who was primarily responsible to actually prove that the delinquent was a person of unsound mind has not been able to discharge its burden by bringing on record cogent evidence to establish the fact.
As already discussed above the report of the medical expert is mired with certain inherent lacuna which does not inspire confidence.
The report of the doctor certified the delinquent to be an idiot. In the plaint, the plaintiff had used different word (vernacular) and have also used the word insane. All these terminologies indicate different facets has an altogether different connotation.

Appreciation of Medical Evidence (in a case where Medical Record was discarded)

In Thithumma v. Rukhiya Umma, 2012-2 Ker LT(SN) 111, the Kerala High Court refrained from acting upon the O.P. register marked as Ext.X1 citing, inter alia, the following:

PW4, the doctor said that the entries in Ext.X1 were usually made by members of staff and he had no personal knowledge.
He was unable to identify the handwriting.
He did not know the doctor, who treated or admitted the patient .
The patient was seen admitted on 29.5.1980 at 5 p.m and discharged on the next day.
No document was available in the hospital except Ext.X1.
The case sheet, the most important document, was not available in the hospital.
PW4 had never seen the case sheet.
Though the signature or thumb impression of the patient could have been affixed in the record, it does not find a place.
Though the case history and date of discharge are recorded in report book, it was not produced.
In Ext.X1, the name of the delinquent alone was shown without his age or address.
PW4 had not seen the doctor nor did he make any personal enquiry.
He had not seen delinquent while he was allegedly in the hospital.
At the most, what can be inferred from Ext.X1 was that one Abdutty whose details are not known was admitted in Mental Hospital, Trichur on 29.5.1980 and discharged on 30.5.1980.
Ext.X1 was not at all sufficient to prove that delinquent was treated for unsoundness of mind at that time or that he was non compos mentis on the date on which Ext.B1 gift deed was executed.

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