DISPUTE RELATING TO TRUST AFFAIRS: Bar to Private Arbitration
There exists an implied bar of exclusion of applicability of the Arbitration Act for deciding the disputes relating to trust, trustees and beneficiaries through private arbitration. In other words, when the Trusts Act, 1882 exhaustively deals with the trust, trustees and beneficiaries and provides for adequate and sufficient remedies to all aggrieved persons by giving them a right to approach the Principal Civil Court of Original Jurisdiction for redressal of their disputes arising out of trust deed and the Trusts Act, 1882 then, in our opinion, any such dispute pertaining to the affairs of the trust including the dispute inter se trustee and beneficiary in relation to their rights, duties , obligations, removal, etc. cannot be decided by the arbitrator by taking recourse to the provisions of the Act. Such disputes have to be decided by the civil court as specified under the Trusts Act, 1882.
Application filed by the respondents under section 11 of the Act is not maintainable on the grounds that firstly, it is not based on an “arbitration agreement” within the meaning of section 2(1)(b) and 2(1)(h) read with section 7 of the Act and secondly, assuming that there exists an arbitration agreement (clause 20 of the trust deed) yet the disputes specified therein are not capable of being referred to private arbitration for their adjudication on merits.
Vimal Kishor Shah and Others v. Jayesh Dinesh Shah and Others, Civil Appeal No. 8164 of 2016; decided on August 17, 2016 [Jasti Chelameswar and Abhay Manohar Sapre, JJ.]
DOCTRINE OF BALANCE
Exercise of power under Section 311 CrPC can be sought to be invoked either by the prosecution or by the accused persons or by the court itself. The High Court has been moved on the ground that the accused persons are in custody and the concept of speedy trial is not nullified and no prejudice is caused, and therefore the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centre around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels, which is physically audible in the court premises, but the court has to remain sensitive to such silent cries and agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words “magnanimous approach” and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned Trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of Doctrine of Balance.
State of Haryana v. Ram Mehar and Others, Criminal Appeal Nos. 805- 806 of 2016; decided on August 24, 2016 [Dipak Misra and Uday U. Lalit, JJ.]
SANCTION FOR PROSECUTION: Pre-requisite for taking cognizance
Section 197 of the Indian Penal Code and/or sanction mandated under a special statute (as postulated under section 19 of the Prevention of Corruption Act) would be a necessary pre-requisite before a court of competent jurisdiction takes cognizance of an offence (whether under the Penal Code, or under the special statutory enactment concerned). The procedure for obtaining sanction would be governed by the provisions of the Code and/or as mandated under the special enactment.
The mandate is clear and unambiguous that a court “shall not” take cognizance without sanction. The same needs no further elaboration. Therefore, a court just cannot take cognizance without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of the learned counsel for the respondents that where cognizance is taken under section 319 of the Code, sanction either under section 197 of the Code (or under the special enactment concerned) is not a mandatory pre-requisite.
The grant of the sanction under section 197 can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction can similarly be assailed by the complainant or the prosecution.
Surinderjit Singh Mand and Another v. State of Punjab and Another, Criminal Appeal No. 565 of 2016; decided on July 5, 2016 [Jagdish Singh Khehar and Chockalingam Nagappan, JJ.]
MOTOR VEHICLES ACT: New Permit
A conspectus consideration of sub-sections (1) to (5) and (7) along with sub-section (8) shows that an application for variation when treated as an application for the grant of a new permit, all the mandatory requirements which are to be followed for the grant of a new permit have to be followed in letter and spirit even with reference to an application for variation, viz. in the case on hand for either increasing the trips as well for increasing the number of vehicles. It is not as if such procedures prescribed in sub-sections (1) to (7) barring sub-section (6), are to be followed casually and that the same would ultimately result in grant of variation irrespective of compliance or non-compliance with such rigorous procedures.
If the prescription of the time-limit specified in sub-section (2) is not complied with, it may result in instantaneous invalidation of the application at the very threshold. Similarly, if the Regional Transport Authority failed to follow the statutory prescription in matter of publication of such an applications, by following the time-limit and the other prescribed procedures under the Rules, then again the consideration of application itself may not take place until such prescriptions are meticulously followed and complied with. Then again, under sub-section (4) anyone who wants to make a representation as against the grant of variation will have to strictly follow the time-limit, viz. filing of such representation before the appointed date as notified by the Regional Transport Authority and that while filing the representation, it must be ensured that simultaneously a copy was served on the applicant, failure to follow such prescription will automatically result in rejection of the right of hearing or right of consideration of any such representation with reference to the application for variation.
G.T. Venkataswamy Reddy v. State Transport Authority and Others, Criminal Appeal No. 4480 of 1998; decided on July 19, 2016 [Dr. T.S. Thakur, CJI and F.M. Ibrahim Kalifulla, S.A. Bobde, R. Banumathi and Uday U. Lalit, JJ.]
DELAY IN IDENTIFICATION OF POSTS: Retrospective Reservation
The appellant could not be given appointment in the recruitment year since the posts were filled up. In particular, the High Court observed that many recruitments have taken place between 2001-2002 till the date of the decision of the High Court on 10-5-2013 and if the appellant is given appointment with retrospective effect from 2001-2002, the entire seniority position of the recruitment of that year as well as the subsequent years will get disturbed. The High Court noted that the gap between the recruitment year and the year in which the appointment was claimed was more than 10 years and since then recruitments have taken place almost every year.
The reservation which must be provided for, as matter of law, has been duly provided by the State which has, in fact, determined the roster point which was calculated for the number of posts that ought to have been reserved from the year 1997-1998 to 2009-2010 and have accordingly made appointments. It is another matter that the appellant has not been appointed thereto.
Vivek Singh v. State of Uttar Pradesh and Another, Civil Appeal No. 10381 of 2014, decided on August 26, 2016 [S.A. Bobde and Ashok Bhushan, JJ.
