Happy new year!

                                    Milind Patil

VAKILSAHEB

Gujarat land deals. Questionable intervention by the office of the CM.

Illegal sale of agricultural land in Gujarat by India gold Refinery to Alumina Refinery and permissions granted by the Revenue Minister under influence of the secretary of the Chief Minister Narendra Modi, is judicially noted by the honourable Supreme Court while deciding appeal filed by Dipak Babaria, leader of opposite party in the State.  The judgment is delivered on 23^rd January 2014.

Epilogue by the honourable SC is as under,

66.         Before we conclude, we may observe that India is essentially a land of villages. Although, urbanization and industrialization is taking place, the industry has not developed sufficiently, and large part of our population is still required to depend on agriculture for sustenance. Lands are, therefore, required to be retained for agricultural purposes. They are also required to be protected from the damage of industrial pollution. Bonafide industrial activity may mean good income to the entrepreneurs, but it should also result into good employment and revenue to the State, causing least pollution and damage to the environment and adjoining agriculturists. While granting the permission under Section 89A (5) the Collector has to examine all these aspects. This is because the only other exception for conversion of agricultural lands to non-agricultural purpose is for those lands which are in an industrial zone. As far as the conversion of lands otherwise than those in the industrial zone is concerned, all the aforesaid precautions are required to be taken when a decision is to be arrived at as to whether the application is for a bonafide industrial purpose. In the instant case, there were newspaper reports of apprehensions and protest of the adjoining farmers. The Revenue Secretary and the Chief Secretary had placed the statutory provisions on record. It was expected of the Government and the Revenue Minister to take cognizance of these apprehensions of the farmers as well as the statutory provisions brought to her notice by the secretaries. She has simply brushed aside the objections of the secretaries merely because the Chief Minister’s secretary had written a letter, and because she was the minister concerned. While over-ruling the opinion of secretaries to the concerned department, the Minister was expected to give some reasons in support of the view she was taking. No such reason has come on record in her file notings. She has ignored that howsoever high you may be, the law is above you.

CIVIL APPEAL N. 836 OF 2014

(@ out of SPECIAL LEAVE PETITION (CIVIL) NO.36738/2012)

VAKILSAHEB

Central Government accepts the 2-G spectrum judgment as binding.

The Congress misleads the nation on the reference judgment regarding the mode of auctions for alienation of natural resources. The tone of the congress party in the press conferences held after the reference is answered by the honourable Supreme Court is totally in conflict with the spirit of the response of the honourable Supreme Court to the Presidential reference, which was evidently an attempt to overrule the 2-G spectrum judgment. The interpretation of the reference judgment regarding allocation of natural resources is apparently misleading. In fact, the said reference has confirmed the 2-G spectrum judgment dated 2nd February, 2012 in the matter of the Centre for Public Interest Litigation & Ors. Vs. Union of India & Ors, and even the Union of India has accepted the same as binding. The reference, though has declared that, the mode of auction is not the only way for allocating the natural resources, it has re-iterated that any decision of allocation of natural resources is always subject to judicial review. SPECIAL REFERENCE NO.1 OF 2012 [Under Article 143(1) of the Constitution of India] concludes by declaring that, 149. Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximizing private entrepreneurs, adoption of means other than those that are competitive and maximize revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution. VAKILSAHEB

Dirty dealing: Praful Patel’s decisions - Moneylife

Dirty dealing: The Air India aircraft purchase could also unravel-Supreme Court issues notices to Centre - Moneylife

A petition refers to several of Praful Patel’s decisions, including ‘massive’ purchase of 111 aircraft for the national airline costing about Rs70,000 crore, taking a large number of planes on lease, giving up profit-making routes and timings in favour of private airlines and the merger of Air India and Indian Airlines The Supreme Court of India Friday issued notices to the Centre and Air India on a plea seeking a probe by the Central Bureau of Investigation (CBI) or a Special Investigation Team (SIT) into a raft of alleged irregularities at Air India during Praful Patel's tenure as civil aviation minister, allegedly to benefit private airlines. A bench comprising justices HL Dattu and CK Prasad sought a response from the government and Air India on a petition filed by Centre for Public Interest Litigation (CPIL) a non-governmental organisation (NGO). The NGO has alleged that these decisions and irregularities had caused huge loss to Air India. Specifically, CPIL's petition refers to the 'massive' purchase of 111 aircraft for the national airline at a cost of over Rs70,000 crore, leasing a large number of planes, giving up several profit-making routes and timings to private airlines and the disastrous merger of Air India and Indian Airlines. The NGO approached the apex court after the Delhi High Court refused to pass any order on CPIL's petition saying that the Public Accounts Committee (PAC) of Parliament is already looking into it. "A responsible committee like PAC is looking into the matter and we are not giving any direction at this stage but expect for PAC to look into the matter from all angles..." the high court had said. In its petition before the apex court, the NGO has alleged that the actions and decisions of the then civil aviation minister "ruined our national carriers, cost the national exchequer tens of thousands of crore and the only beneficiary of the above decisions were foreign aircraft manufacturers, private and foreign airlines". "Thus the above actions were clearly made on extraneous considerations and resulted in pecuniary benefits to private companies, which is an offence under the Prevention of Corruption Act". The NGO has also referred to a CAG report which had stated that the decisions of the ministry do not "withstand audit scrutiny" and that the entire exercise was "a recipe for disaster ab initio" and "should have raised alarm signals in the government". Following the SC notices, there is renewed hope that the findings of the CAG report as well as the alarm that had been sounded by Sunil Arora, former chairman and managing director (CMD) of Indian Airlines will finally see light of day. It is believed that Mr Arora, who is credited with turning around Indian Airlines during his tenure of 2002 to 2005 and making it profitable, was hounded out because he would not fall in line with Mr Patel's machinations. Mr Arora had then written a detailed letter to the cabinet secretary BK Chaturvedi on 2 June 2005, documenting all that was wrong in the decisions which escalated the losses dramatically. Interestingly, existence of such a document came to light with the release of Delhi lobbyist Niira Radia's taped conversations with Mr Arora. Right to Information (RTI) activists who had written to the government seeking this document may like to know that the letter was denied to them because it was not written on 28 May 2005 as is wrongly believed but on 2 June 2005. We learn that Mr Arora wrote a second letter to the cabinet secretary on 10th June in which he documented his meeting with Mr Chaturvedi and elaborated on why it as wrong to force Indian Airlines to give up its bilaterals. While Praful Patel has got away with causing grave losses to the national carriers and a plan is afoot to bail them out through a massive infusion of funds by the exchequer, Sunil Arora continues to be punished for his remarkable work in having restored IA to its glory days for a brief period and for daring to speak against the minister. In August, the appointment's committee had approved the appointment of this Rajasthan cadre IAS officer as Development Commissioner (Handlooms) under the ministry of textiles, but it was promptly cancelled with the state claiming that it was unwilling to let him go to the Centre. VAKILSAHEB

Section 304 of the Cr.P.C.- Legal aid to accused at State expense in certain cases. - Availing assistance of a lawyer to defend is fundamental right of an accused.

The honourable Supreme Court of India while deciding CRIMINAL APPEAL NO . 1091 OF 2006 filed by Mohd. Hussain @ Julfikar Ali has confirmed the right to fair trial as a fundamental right of an accused. The honourable Court, however, at the same time has held that, mere delay in trial cannot be a ground by itself to justify discontinuance of prosecution or dismissal of indictment. The honourable Supreme Court has further held that, the factors concerning the accused’s right to speedy trial have to be weighed vis-a-vis the impact of the crime on society and the confidence of the people in judicial system. On 30.12.1997 at about 6.20 p.m. one Blueline Bus No. DL-1P-3088 carrying passengers on its route to Nangloi from Ajmeri Gate stopped at Rampura Bus Stand at Rohtak Road for passengers to disembark. The moment the bus stopped, an explosion took place inside the bus. The incident resulted in death of four persons and injury to twenty-four persons. The FIR of the incident was registered and investigation into the crime commenced. On completion of investigation, the police filed a charge-sheet against four accused persons – one of them being the present appellant, a national of Pakistan – for the commission of offences under Sections 302/307/120- B of the Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act, 1908. The appellant and the other three accused were committed to the Court of Session. The three accused other than the appellant before the honourable Supreme Court were discharged by the Additional Sessions Judge, Delhi. The appellant was charged under Sections 302/307 IPC and Section 3 and, in the alternative, under Section 4(b) of the ES Act, and was then convicted and was awarded death sentence, which was confirmed by the honourable Delhi High Court. The honourable Supreme Court of India has declared that, the necessity of a counsel in a criminal trial is so vital and imperative that the failure of the trial court to make an effective appointment of counsel amounts to denial of due process of law. Absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 Cr.P.C. The honourable Supreme Court has directed de-novo trial of the accused from the stage of prosecution evidence. VAKILSAHEB

Maharashtra Government and the MIDC directed to maintain status-quo of the lands acquired for extended Shendra MIDC from village Ladgaon.

The Honourable High Court has directed the State Government and the MIDC to maintain status -quo as on 30th July 2012 in regard of the lands at Ladgaon, Aurangabad, for extended Shendra Industrial area. This order is passed in two different writ petitions filed by two groups of petitioners. In the petition filed by Mr. Avadhoot Shinde and others, the then industrial Minister Mr. Rajendra Darda and the then Sub-divisional Officer at Aurangabad, Mr. Waman Kadam are contesting respondents in their personal capacities. The petition alleges that, mr. Kadam had initiated the acquisition move at the instance of the then Industrial Minister, though he was not authorised to initiate the acquisition proceedings as provided under the ID Act. The petition points out that, when more than 80% already developed industrial plots from Waluj, Shendra, Chikalthana and Railway station MIDC area are un-utilised, there is no rational in acquiring additional lands. The petitioners have alleged that, the acquisition is malafide and is aimed at facilitating the builder lobby to earn unreasonable profits by pretending that no land is available for further development in view of reservation of lands in bulk for industrial purpose. The petition has further placed on record, authentic admissions of the MIDC officials that, the basic infrastructure like water, power, so also industrial waste disposal system required for presently functioning 20% units from the developed industrial area is not available. The petitions have also questioned the change of user of the industrial lands for commercial and residential purpose. They have also demonstrated the arbitrary exercise of authority in violation of principles of natural justice. VAKILSAHEB

Power to arrest

Power to arrest
The arrest of daughter of a retired High Court Judge by the CBI on the basis of a complaint alleging demand of graft has raised an important question about unbridled and un-guided power of an Investigation officer to arrest anyone merely on the basis of allegations in a compliant.
The Expressindia.com has claimed possession of a copy of FIR and has mentioned the contents of the same. The facts mentioned in the news indicate possibility of malicious prosecution by the frustrated complainant.
The case is reportedly pending before the National Commission. The State Commission has already disposed off the same. Where is the question of post decision bribe by a party who has suffered adverse order? Anyone having a little knowledge about the establishment of the National Consumer Forum, members of which are retired Supreme Court judges, and the manner in which it functions, would not believe the allegations in the complaint.
Existence of people indulged in misuse of names of the persons occupying responsible posts, for their own benefit without even knowledge of their activities to such person, whose name is being misused, is not a new thing. Declaring the person whose name is being misused as accused is the most imprudent and unjust action. By this logic, any person occupying higher responsibility post or his near ones can be harassed and arrested by simply naming them in any FIR. With this constant threat, no one will aspire to occupy any constitutional or responsible post.
The arrest appears to be a hasty and irresponsible action. Merely because an investigation agency has power to arrest, it should not be allowed to exercise it without any incriminating evidence. The facts in the news, if correct, the arrest is abuse of authority. It is a matter of personal liberty and it cannot be dealt with so casually. Such hasty arrest needs to be condemned. It is high time to frame and implement guidelines for exercise of authority of an investigation Officer to arrest anyone, unmindful of its consequences. The right to live with dignity is the fundamental right and it cannot be allowed to be violated under the pretext of investigation of allegations in a complaint. We are in 21st Century and the irrational and inhuman laws permitting abuse of authority, which were framed by the British to rule the nation by treating the same as a colony cannot be allowed to continue in the today’s era, which values human rights. Apart from the agony being suffered by the arrested, the faith in the system of administration of justice is at stake.

The said matter also provides necessity of considering bail matters by the judiciary from the angle of abuse of the legal process by a mischievous complainant. It is a general experience that, bail applications are rejected by simply considering the nature of allegations without assessing the credibility of the same.

Even in the case of ‘Note for Vote’ controversy, the persons who arranged sting operations are arrested and are sent behind bars. The beneficiaries of the event continue in Power.
I sincerely feel that, the entire approach towards the investigation aspect and authority of the investigation officer to arrest a person merely on the basis of allegations in a complaint deserves reconsideration.


VAKILSAHEB

Lokpal Bill and media interviews by Justice Hegde

Comments by justice Hegde, on his own report and his anticipation about expected response by the Government has strengthened the contention of the Congress party that, an uncontrolled Lokpal is not advisable. People supporting Anna Hazare camp are required to give second thought on the insistence of uncontrolled superpower Lokpal.
Only because the present government has lost its credibility doesn’t necessarily mean that the apprehensions raised by the Government are illogical or unwarranted. For drafting of a proper and effective legislation all the probabilities are required to be considered.
In fact, an occupant of the constitutional post should not have accepted to represent a social group in the drafting committee.
It is always that, we draft legislations by emotions of the moment and not with professional wisdom.
It is to be noted that, all the legislations drafted in British era are still relevant and are best examples of complete legislations. However, the legislations drafted after independence are not that professional and have proved to defeat the purpose of the very legislation.
It is, therefore, necessary to leave the job of drafting the Lokpal legislation to reputed professional Lawyers and Jurists. The draft so prepared can be discussed by the legislatures before enacting the same.
Adamant insistences of politicians and so called social representatives are not a proper way to draft and enact an important legislation.
As an advocate and a responsible citizen of India, I disapprove the interviews by justice Hegde to media about his own report. These iterviews have questioned the credibility of the report.

VAKILSAHEB

Apology by a contemnor

While deciding CRIMINAL APPEAL NO. 697 of 2006 [Vishram Singh Raghubanshi Versus State of U.P.] the honourable Supreme Court of India has observed that, an apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the “contrition which is the essence of the purging of a contempt”. However, even if the apology is not belated but the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defense, the Court may refuse to accept it. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment, it ceases to be an apology and becomes an act of a cringing coward.


The honourable Supreme Court was dealing with a matter of contemptuous behavior by an Advocate with the Judicial Officer, before whom, the Advocate had allegedly presented a wrong person impersonating him as the accused causing surrender. When there was dispute regarding the genuineness of the identity of the surrendering person, the advocate misbehaved and used abusive language.

The learned Presiding Officer made a reference to the honourable High Court as well as Uttar Pradesh Bar Council.

Ironically, the Uttar Pradesh Bar Council, which is supposed to lay high standards of practice, dismissed the compliant.

However, the Honourable High Court convicted the advocate by refusing to accept the apology tendered by the advocate contemnor.

The honourable Supreme Court considered the factual accepts and ruled that, the apology was tendered only to avoid punishment.



VAKILSAHEB

Section 313 of Cr.P.C.

Circumstances not put to the accused u/s 313 of Cr.P.C. cannot be used against him.

While deciding CRIMINAL APPEAL NOs. 1693-1694 OF 2005 [State of U.P. Versus Mohd Iqram & Anr.] the honourable Supreme Court of India has underlined mandatory nature of provisions of S.313 of the Criminal Procedure Code, which offers opportunity to the accused to explain incriminating circumstances and evidence against him.


These observations are made while reversing a judgment of acquittal of the accused, acquitted by the First Appellate Court by setting aside initial order of conviction. The initial conviction was set aside by the First Appellate Court by observing that, in the opinion of the First Appellate Court, the murder, subject matter of the prosecution was committed by the husband of the deceased after committing rape on her. The learned trial Court had acquitted the husband and convicted other accused, who were caught in suspicious circumstances.

While reassessing the evidence, the honourable Supreme Court, has found that, the observations of the learned First appellate court against the acquitted husband of the deceased were not only unwarranted but not permissible in absence of any opportunity to him to explain the suggestions reflected from the opinion of the learned First appellate court.

The honourable Apex Court has also found that, the accused, who were convicted by the learned trial court, though were offered opportunity to explain incriminating circumstances against them, had failed to explain the same and were rightly convicted by the learned trial court and were wrongly acquitted by the learned first appellate court.

Para 13 of the judgment, which underlines the importance of provisions of section 313 of the Cr.P.C. reads as under,

13. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so.

Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration. (Vide: 13 Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200)

Death sentence for fake encounters

While deciding CRIMINAL APPEAL NOS.1174-1178_OF 2011 [Prakash Kadam & etc. versus Ramprasad Vishwanath Gupta & Anr], the honourable Supreme Court of India while expressing it’s anguish on fake encounters, has opined that, in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murders by persons who are supposed to uphold the law. The honourable Court further observed that, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.

The judgment has it’s own literate value. Part of the judgment is reproduced here.

The judgment starts by remembering a poem by Shakespeare


A curse shall light upon the limbs of men;
Domestic fury and fierce civil strife
Shall cumber all the parts of Italy;
Blood and destruction shall be so in use
And dreadful objects so familiar
That mothers shall but smile when they behold
Their infants quarter’d with the hands of war;
All pity choked with custom of fell deeds:
And Caesar’s spirit, ranging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion mean, groaning for burial.
-- (Shakespeare: Julius Caesar Act 3 Scene 1)



18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.


23. In our opinion this is a very serious case wherein prima facie some police officers and staff were engaged by some private persons to kill their opponent i.e. Ramnarayan Gupta and the police officers and the staff acted as contract killers for them. If such police officers and staff can be engaged as contract killers to finish some person, there may be very strong apprehension in the mind of the witnesses about their own safety. If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. This aspect has been completely ignored by the learned Sessions Judge while granting bail to the accused persons.


24. In our opinion, the High Court was perfectly justified in canceling the bail to the accused-appellants. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the protectors have become the predators. As the Bible says “If the salt has lost its flavour, wherewith shall it be salted?”, or as the ancient Romans used to say,”Who will guard the Praetorian guards?” (see in this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on 25.10.2010).


25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.

26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.


28. Before parting with this case, it is imperative in our opinion to mention that our ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle. In Sanskrit the word ‘Matsya’ means fish, and Matsyanyaya means a state of affairs where the big fish devours the smaller one. All our ancient thinkers have condemned Matsyanyaya vide ‘History of Dharmashastra’ by P.V. Kane Vol. III p. 21. A glimpse of the situation which will prevail if matsyanyaya comes into existence is provided by Mark Antony’s speech in Shakespeare’s ‘Julius Caesar’ quoted at the beginning of this judgment.


29. This idea of matsyanyaya (the maxim of the larger fish devouring the smaller ones or the strong despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata and other works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where it is said “whenever there is drought, then the stronger seizes upon the weaker, for the waters are the law,” which means that when there is no rain the reign of law comes to an end and matsyanyaya beings to operate.

30. Kautilya says, ‘if danda be not employed, it gives rise to the condition of matsyanyaya, since in the absence of a chastiser the strong devour the weak’. That in the absence of a king (arajaka) or when there is no fear of punishment, the condition of matsyanyaya follows is declared by several works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30 and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II. 20.1295 etc.


31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:- “Raja chenna bhavellokey prithivyaam dandadharakah Shuley atsyanivapakshyan durbalaan balvattaraah”

32. This shloka means that when the King carrying the rod of punishment does not protect the earth then the strong persons destroy the weaker nes, just like in water the big fish eat the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers.


33. We have referred to this because behind the growing lawlessness in the country this Court can see the looming danger of Matsyanyaya.

Judicial legislation on Rent Acts.

While deciding CIVIL APPEAL NO. 4422 OF 2011 [Mohammad Ahmad & Anr Versus Atma Ram Chauhan & Ors.] the honourable Supreme Court of India has fixed some guidelines, some of which run directly in conflict with the provisions of Rent legislations in force in the country.

As per the guidelines fixed by the honourable Apex Court, henceforth, payment of tax would be the liability of the tenant. Most of the rent legislations provide that, the said liability is of the landlords. The honourable Supreme Court has also issued guidelines for fixation of standard rents.

These guidelines, if considered against the statutory provisions, process of adjudication as to whether a tenant is a defaulter or not has become more complicated as the deductions made by the tenants towards payment of taxes would be treated as arrears of rent, contrary to the provisions of respective statutes. Whether a decree of eviction can be passed by assessing the rent payable contrary to the statutory provisions would be a debatable issue. Five years absolute immunity granted to a tenant paying rent at market rate would render all other grounds of eviction like bonafide requirement, nuisance, etc. as redundant.

Vote bank oriented approach of the legislators has lead to continuation of illogical and unjust protections to some classes. However, question remains, whether that can be a reason to allow the judiciary to legislate?

The guidelines fixed by the honourable Supreme Court are,

21. According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels.

These are as follows:-

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.


(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.

(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard
to adjustment of the amount spent thereon, would have to be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.


(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.

22. These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court.

VAKILSAHEB OPINES

The judiciary has authority to examine constitutional validity of legislation. Please declare the illogical, irrational and un-prudent legislations as unconstitutional by applying the test of existence of rational nexus with the object to be achieved.


VAKILSAHEB

Sanction for prosecution

The honourable Supreme Court of India, while deciding CRIMINAL APPEAL NO. 992 OF 2007 [M.P. STATE VERSUS PRADEEP KUMAR GUPTA] has held that, for an employee appointed by the State Government and deputed to a Local Authority, the State Government being the appointing authority is competent to grant sanction for his prosecution.


VAKILSAHEB