Category: Corporate And Other Laws

A
preliminary objection as to the maintainability of certain References
at the instance of the then Chief Justice of the Court was raised.

According
to the learned Counsel, a reference to a Larger Bench can be initiated
only at the instance of a Judge sitting singly or the Judges of a
Division Bench or even the Judges of a Larger Bench, provided the said
Court while dealing with a judicial matter proposes to disagree with the
view earlier taken by any other Bench of this Court on the self same
point. According to the learned Counsel, in these cases, the
subject-matter of dispute is the proposition of law laid down by a
Division Bench of this Court consisting of Justice Shethna and Justice
Patel and, thus, unless another Judge of this Court sitting singly or
another Division Bench, in judicial side, disagrees with the above view,
there is no scope of referring the matter to the Chief Justice for
constitution of a Larger Bench. The decision given by the said Division
Bench while laying down the proposition of law has not been appealed
against by the aggrieved party and has attained finality and the said
decision is binding upon a Division Bench or a learned Single Judge of
this Court as a precedent, while deciding any subsequent judicial
matter. In such circumstances, the Chief Justice of this Court, sitting
in administrative capacity, is not authorised by law to make a Reference
to a Larger Bench for the purpose of deciding the correctness of the
said decision of the Division Bench. In other words, according to the
learned Counsel, the initiation of Reference is not permissible under
law, unless there exists a pending judicial matter where the Judges of
the Bench or a learned Single Judge has referred the matter on judicial
side before the Chief Justice. The learned Counsel, therefore, prayed
for dismissal of these References as not maintainable.

The
Hon’ble Court referred to Rules 5 and 6 of the Gujarat High Court Rules,
1993, and observed that Rule 5 authorises either a learned Single Judge
or a Division Bench to refer the matter pending before them or any
question arising in such matter to a Division Bench of two-Judges or a
larger Bench respectively. On such Reference being made, it is the duty
of the Chief Justice to constitute either a Division Bench or a larger
bench for the decision on the question referred or for decision of the
matter referred.

Rule 6 of the Gujarat High Court Rules, on the
other hand, authorises the Chief Justice of the High Court to direct
either by a special or a general order that any matter or class of
matters should be placed before a Division Bench or a Special Bench of
two or more Judges.

Thus, Rule 6 of the Rules of 1993 merely
authorises the Chief Justice to place any pending matter or any type of
pending matters to a Division Bench or a Larger Bench notwithstanding
the fact that according to the Rules of 1993, those matters are required
to be decided by any learned Single Judge or a Division Bench fixed by
the Chief Justice in exercise of his power of fixation of roster. The
aforesaid Rule also authorises the Chief Justice to place the matter,
which is otherwise required to be heard by a Division Bench, for hearing
before a Larger Bench.

In the matter of References, the source
of Reference must be a judicial order passed by either a learned Single
Judge or any Bench while deciding a judicial matter. The Chief Justice,
in his administrative capacity, cannot constitute a Larger Bench for the
purpose of deciding a pure question of law simply because the Chief
Justice is of the view that such question, notwithstanding a decision of
a Division Bench of this Court in one way or other, is required to be
heard by a Larger Bench. Even if on any important question, there is no
decision of this Court, such fact cannot enable the learned Chief
Justice to constitute a Larger Bench suo motu in exercise of
administrative power.

The Court also considered the inherent power of the Chief Justice as the “muster of roster”.

A
right of Reference, like the one of appeal, review or revision, is a
substantive right and is a creature of statute and should be exercised
strictly in the manner as provided for in the statute which creates such
right.

Thus, it was held that there is no scope of referring
any question at the instance of the Chief Justice in his administrative
capacity to a Larger Bench which is not preceded by a Reference at the
instance of a Court sitting in judicial capacity and relating to any
matter pending in such Court.

The question which fell for consideration before the Hon’ble Court was whether a co-operative registered under the Tamil Nadu Co-operative Societies Act, 1983, is a “public authority” within the meaning of section 2(h) of the Right to Information Act, 2005 ( “RT I Act”).

It was contended that the co-operative society is not a body, which is controlled by the Government and hence, does not fall within the definition of section 2(h) of the RTI Act. Further, it is contended that the word “control” in section 2(h) of the RT I Act relates to administrative control and not a regulatory control and the, provisions relied on by the Writ Court and the judgments referred pertain to a regulatory control and are not applicable to the facts and circumstances of the case. It was further contended that though the co-operative societies are manned by Special Officer appointed by the Government, it would not become a “public authority” to be covered under the provisions of RT I Act.

In the case of Thalappalam Ser. Coop., Bank Ltd., and Others, (AIR 2013 SC (Supp) 437), appeals were filed by co-operative societies and the question which fell for consideration before the Hon’ble Supreme Court was whether a co-operative society registered under the Kerala Cooperative Societies Act, 1969, will fall within the definition of “public authority” u/s. 2(h) of the RT I Act and be bound by the obligation to provide information sought for by a citizen under the RTI Act. On the first issue with regard to co-operative societies and Article 12 of the Constitution, the Hon’ble Supreme Court pointed out that a clear distinction can be drawn between a body which is created by a statute and a body much after having come into existence is governed in accordance with the provisions of a statute and the societies which were subject matter of the appeals were held to fall under the later category, i.e., governed by the Kerala Societies Act and not statutory bodies, but only body corporate within the meaning of section 9 of the Kerala Co-operative Societies Act. The Hon’ble Supreme Court, held that the said societies which were the subject matter of those appeals will not fall within the expression ‘State’ or ‘instrumentality of the State’ within the meaning of Article 12 of the Construction.

On the next issue relating to Constitutional provisions and Co-operative autonomy, it was held that co-operative societies are not treated as a unit of Self Government like Panchayat and Municipalities. The Hon’ble Supreme Court then proceeded to examine the provisions of the Right to Information Act, the effect of words “substantially financed” and the restrictions and limitations, which could be imposed in the larger public interest and held that the co-operative societies registered under the Kerala Co-operative Societies Act will not fall within the definition of “public authority” as defined u/s. 2(h) of the RTI Act.

In the present matter, the Hon’ble Court held that the legal issue arising in the appeals are squarely covered by the decision of the Hon’ble Supreme Court in the case of Thalappalam Ser. Co-op. Bank (supra). Further, the distinction sought to be drawn by the learned counsel for the respondent stating that the provisions of the RT I Act would be applicable to cases where the Government Officers are appointed to function as Special Officers of the society, when there is no elected Board of Directors, could hardly make any difference. Thus, the appeals were allowed holding that societies will not fall within the definition of “Public Authority” as defined u/s. 2(h) of the RTI Act.

The appellants are the wife and daughter of one Rabindra Nath Mite who died on 05.03.1994. Rabindra Nath Maite had three brothers by full blood. The appellants/petitioners have pleaded that the Will dated 08.01.1990 alleged to have been executed by Rabindra Nath Maite is fake and fabricated. It is alleged that Rabindra Nath Maite had no intention to give the property described in the said Will to his nephews-Samir Maite and Somnath Maite by appointing the respondent, Shridam Maite (brother) as the executor of the said Will. The appellants have specifically stated that the deceased Rabindra Nath Maite was not in good terms with his brothers including the respondent.

The appellants have also pleaded that necessary notices were not served on the appellants in the probate proceeding, though the appellants have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs.

The Hon’ble Court observed that section 263 of the Indian Succession Act, 1925 lays down that the grant of probate or letters of administration may be revoked or annulled for just cause. It is laid down in the Explanation to the said section 263 that just cause shall be deemed to exist where (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

In the present case, the appellants had specifically pleaded in the application before the Trial Court that no notice from the Court was served upon the appellants in respect of the probate proceeding and no notice was received by the appellants. The respondent Shridam Maite had stated in his evidence that the notice of probate proceeding was served on the appellants

The Court observed that the appellant Mithu Biswas has specifically denied her signature on the notice alleged to have been served on the appellants in connection with the probate proceeding. As the appellant Mithu Biswas has denied her signature on oath on the notice of the probate proceeding, the onus is shifted on the respondent to prove that that notice was duly served on the appellants by the Court bailiff. The respondent could have discharged this onus by examining the bailiff as witness who is alleged to have served the notice of the probate proceeding on the appellants. In the absence of the examination of the bailiff as witness by the respondent, it was held that the respondent has failed to establish that the citations of the probate proceeding were served on the appellants before grant of probate. The non-service of citations upon the appellants who have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs is the just cause for revocation of grant of probate.

Since the citations of the probate proceeding was not served upon the appellants who have interest in the estate of the deceased as legal heirs, the grant of probate is liable to be revoked.

The Hon’ble Court observed that not only should the opportunity of cross examination be made available, but it should be one of effective cross examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross examination is an integral part and parcel of the principles of natural justice.

The Hon’ble Court observed that affidavits are not included within the purview of the definition of “evidence” in section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (CPC). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact or situation. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. Such view stands fully affirmed, particularly in view of the amended provisions of Order XVIII, Rules 4 and 5 of the CPC.

When a document is produced in a court or a Tribunal, the question that naturally arises is: is it a genuine document, what are its contents and are the statements contained therein true. If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under Order 19 of the CPC and the Evidence Act, both of which incorporate the general principles.

Cases were filed by spouses against each other before the Family court. Husband filed petition for joint trial of all the cases. On the date of hearing, counsel for the husband was not present and the petitions filed by the husband were dismissed for default. The counsel filed a petition to restore the cases and the affidavit in support of the petition was sworn by the counsel. The Family Court dismissed the petition on the ground that the petition and the affidavit were signed by the counsel and not by the party. Appeal was filed by the petitioner contending that the counsel was authorised to swear the affidavit and file the petition for restoration.

The Court held that a lawyer could file a petition, on behalf of the party he represents, under Order IX, Rule 9 of Code of Civil procedure duly signed by him on behalf of the party he represents, even though the vakalatnama did not expressly authorise an advocate to file an application for restoration. If the court is satisfied that there was no express prohibition in doing so, it has to assume that the counsel had implied authority to file such application. Thus, it was held that there was sufficient cause for the petitioner’s counsel for presenting the above petition in the Family Court and it cannot be said that the petition, filed by a lawyer is not in accordance with the law. Therefore, the order dismissing petition to restore the cases passed by the Family Court was set aside.