INDEX

SN COMPONENT

A MOOT COURT
1 Moot Court No: 1 (Civil Suit)

MOOT PROBLEM – 1

Shaheen, a shia Muslim married Sohail, a sunni Muslim on November 11, 2006 at
Nakpur, Bundelia Pradesh in Republic of Industan. Shaheen is cousin sister of
Afreen who is Sohail’s cousin sister on the maternal side. Both Shaheen and Sohail
are graduates from a reputed college of Navi Dally University. Sohail is also a
qualified chartered accountant. At the time of their marriage, which was an
arranged marriage, Sohail was working with one of the big four accounting firms in
Bangalore. Shaheen was working as a manager at a leading retail chain.

In January, 2009, Sohail relocated to Navi Dally with his wife Shaheen, and has set
up a registered partnership enterprise Sohail & Sahil Associates with his college
friend Sahil. Sohail and Shaheen live in a 1BHK apartment which is owned by his
brother Amir in Greater Palash, but whose electricity charges, house tax, water tax
and maintenance are all paid by Sohail. Amir is a permanent resident of United
Kingdom and is a doctor with NHS Trust. Sohail and Shaheen had jointly applied for
a flat in Navi Dally Development Authority Vikas Scheme, 2010 and have got a flat
in lottery in Vistar Vihar Extension – Phase 3.

After moving to Navi Dally in January, 2009, Shaheen has been wanting to have a
child and stay at home, to which Sohail does not agree. They have been having
frequent heated arguments about this. Shaheen has discussed this with her mother,
who has also tried to make Sohail understand the issue. Sohail, however, has been
unrelenting and considers it too early. Since Afreen had played a vital role in getting
them married, she also visited the couple, at Shaheen’s mother’s instance, at their
residence in Greater Palash and unsuccessfully attempted to intervene between the
two on September 29, 2010. It appears that Afreen being an ambition professional
herself was inclined to support Sohail. On November 10, 2010, Sohail and Shaheen
again had a heated argument over the same issue. After the argument, Sohail went
downstairs for a walk. He returned after two hours and divorced Shaheen with
three pronouncements of “talaq”. Afreen was a witness to this development and till
today continues to live in the said apartment.

Thereafter, Sohail has moved out of the house in Greater Palash where he lived with
Shaheen, and has been living in a guest house which is available at nominal rent
from his partnership firm. On December 1, 2010, Shaheen filed an application under
Protection of Women from Domestic Violence Act, 2005 (“Domestic Violence Act,
2005”) before the Magistrate in Navi Dally seeking to restrain Sohail and Afreen
from, directly or indirectly through agents, dispossessing her from the apartment in
Greater Palash in Navi Dally. Shaheen had also approached the civil court seeking a
declaration that divorce pronounced by Sohail not being in conformity with the
Islamic law be declared as a nullity. In addition to defending the above arguments,
Sohail has argued that Domestic Violence Act, 2005 to the extent that it gives rights
to women beyond the period of iddat is against his fundamental right to practise his
religion. Afreen has argued that being Shaheen’s relative she cannot be made a
respondent under the Domestic Violence Act, 2005.

In December, 2011, while Shaheen’s application under the Domestic Violence Act,
2005 has been allowed, her civil suit for declaration has been dismissed. Thus, writ
petitions have been filed both by Shaheen and Sohail before the Navi Dally High
Court which have been connected by a court order and are listed together for final
disposal.

The polity and societal structures of Republic of Industan are identical to that of
Republic of India and the provision of the Domestic Violence Act, 2005 and the
Constitution of Industan are in pari materia with the Protection of Women from
Domestic Violence Act, 2005 and the Constitution of India.

SYNOPSIS OF FACTS

VEX: India’s leading Consultancy Company which provides services to corporate

sector clients including advice on resource allocation, project finance, financial
management, staff training and public relations management.
SEUSS: A private limited company, they approached VEX to advise them on running
their business.
Standard Form of Contract: This contract contains several negative covenants
including prohibition from disclosing any information during tenure of contract and
for a period of 7 years after its termination. VEX also covenants with its clients to
maintain client confidentiality for like term of 7 years.
Contract between VEX and SEUSS: Both the parties executed the contract on 2nd
August, 2007.
Clause 41: This clause provided that in case of dispute or differences between the
parties, it will be solely decided by Mr. Rohan Hair and his decision will be final and
binding. The decision shall exclude all other remedies including redressal from any
court.
Clause 42: This clause provided that in case of breach of confidentiality SEUSS will
be liable for liquidated damages.
Legal Notice: SEUSS sends a legal notice to VEX on 16th Oct, 2010 that they have
breached confidentiality covenant by putting their name and other credentials on
their website under “Frequently Asked Questions” on 10th Oct, 2010.
Seeking Advice after sending Legal Notice: SEUSS received advice from VEX of a
circular letter to be written by SEUSS to all their retailers to salvage the situation
and SEUSS acted on it.
Filing of the Suit: SEUSS instituted suit for damages for breach of the covenant of
confidentiality by VEX in Trial Court and Trial Court found in favour of SEUSS. High
Court overturned the finding of the Trial Court, set aside the decree of damages and
dismissed SEUSS‟s suit.
Special Leave Petition: On filing the Special Leave Petition, leave is granted and
the Civil Appeal has now been posted for final hearing by this Hon‟ble Supreme
Court.

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT-

SUMMARY OF ARGUMENTS

It is humbly submitted that Section 28 of the Indian Contract Act, 1872 provides an
exception for arbitration agreements. Since Clause 41 constitutes a valid arbitration
agreement, it falls within the exception aforementioned exception. Further, Clause
41 acts as a partial restraint on legal remedy, which is allowed under section 28.

It is humbly submitted that Persuess Inc. cannot invoke Clause 42 of the contract as
the clause clearly states that liquidated damages mentioned therein may only be
claimed by Vecula Exclusive Consultancies in case of breach of the covenant of
confidentiality. Therefore as per the settled position of law, when the language of a
clause is express and unambiguous the courts are not at liberty to imply terms not
specifically included. Further, Persuess Inc. cannot claim damages from Vecula
Exclusive Consultancies as the conduct of Persuess Inc. demonstrates that it has
waived its right to claim damages. Many judicial pronouncements have upheld the
act of drawing such and inference.

ARGUMENTS ADVANCED

1. It is humbly submitted that Section 28 of the Indian Contract Act, 1872 provides
an exception for arbitration agreements. Since Clause 41 constitutes a valid
arbitration agreement, it falls within the exception aforementioned exception.
Further, Clause 41 acts as a partial restraint on legal remedy, which is allowed
under section 28.
2. Section 7 of the Arbitration and Conciliation Act, 1996 ( hereinafter referred to as
“Arbitration Act”) states that an `arbitration agreement' is an agreement by the
parties to submit to arbitration all or certain disputes which have arisen or which
may arise between them in respect of a defined legal relationship, whether
contractual or not.
3. The Honourable Supreme Court of India has laid down the essentials of a valid
arbitration agreement in K.K. Modi v. K.N. Modi1 and Bihar State Mineral
Development Corporation v. Encon Builders (I)(P) Ltd2 as follows: firstly, there must
be a present or future difference in connection with contemplated affair; secondly,
there must be an intention of the parties to settle such difference by a private
tribunal; thirdly, parties must agree in writing to be bound by the decision of the
tribunal; and lastly parties must be ad idem. It is humbly asseverated that Clause 41
satisfies all the four essentials mentioned above.
4. It is respectfully submitted that there is a difference between power of
supervision and administrative control on one hand and adjudication of the dispute
on the other hand. Clause 41 explicitly envisages the existence of a dispute and
therefore cannot be construed to be a reference to an expert. In Bharat Bhushan
Bansal v. U.P Small Industries Corpn. Ltd., Kanpur3 it was held by the Hon‟ble
Supreme Court that a clause referring all disputes in respect of the contract to the
chief engineer is essentially an arbitration clause despite the absence of the word
arbitration.

5. In a recent judgment of this Court in the case of VISA International Ltd. v.

Continental Resources (USA) Ltd.4 it held that, “No party can be allowed to take
advantage of inartistic drafting of arbitration clause in any agreement as long as
clear intention of parties to go for arbitration in case of any future disputes is evident
from the agreement and the material on record, including surrounding
circumstances.”
6. When two contradictory constructions are possible construction that gives effect
to the arbitration agreement should be preferred.5 Contract, being a commercial
document must be interpreted in a manner which gives efficacy to the contract
rather than invalidate it.6 The narrow technical approach is improper.7 Clause 41
does not oust the jurisdiction of courts; it is a mere condition precedent. Such a
person exercises quasi-judicial function and his decision can be questioned in
court.8 Accepting but not conceding that an alternative unfavourable interpretation
is also possible, this Hon‟ble Court should still rule in favour of a valid arbitration
clause.
7. An arbitration clause cannot be held to be vague only because the mode and
manner of the arbitration is stated to be set out subsequently as per the
agreement.9 Thus, even though the procedural aspects of the arbitration may not
have been laid down in Clause 41, the clause is still valid. Accepting but not
conceding that Clause 41 acts as an absolute bar, it is still severable from the
remaining clause about reference of the dispute to arbitration which is valid and
enforceable.10

8. Section 8 of the Arbitration Act makes it obligatory on the court to refer parties to
arbitration if the action brought before the court is covered by a valid arbitration
agreement. It does not require that the subject matter under arbitration must be
captured in an existing, complete agreement.11 The intention behind this provision
is to prevent the use of dilatory tactics by party interested in getting out of their
commitment to arbitration.12
9. The main attribute of an arbitration agreement, is consensus ad idem to refer the
disputes to arbitration.13 This is clearly reflected in Clause 41. In course of the
correspondence it is clear that the parties we ad idem to the terms relating to the
arbitrator.14 There is nothing in the factual matrix to suggest that the respondent
had any problem with the appointment of Mr Rohan Hair. Thus, the respondent
should not, at this stage, be allowed to retract on their commitment towards
arbitration.
10. Section 16 of the Arbitration Act expressly authorizes the arbitrator to decide
upon the existence or validity of arbitration agreement.15 Hence, even the question
of validity of Clause 41 should be decided upon by Mr. Rohan Hair. When
frustration is alleged, the performance of a contract may have come to an end but
the contract remains in existence for the purpose of resolution of disputes including
the question whether the contract was discharged under the doctrine of frustration
or by breach.16 Thus an arbitration clause survives the termination of
agreement.17

11. It is submitted that the compromis18 clearly enunciates that liquidated

damages may be invoked only when a breach of confidentiality is committed by
SUESS and the liquidated damages estimated will accrue to VEX when they are an
innocent party to a breach of confidentiality. Events mentioned in Para 6 of
Compromis19 explain that the rationale behind the pre-estimation of damages is
tailored to the needs of VEX. It can therefore be said that there is no ambiguity in
the terms of Clause 42 of the contract especially keeping in mind the surrounding
circumstances.

12. It is submitted that the principle is well settled that a stipulation not expressed
in a written contract should not be implied merely because the Court thinks that it
would be a reasonable thing to imply it.20 This proposition has been reiterated in a
plethora of Indian and foreign cases. In Babulall Choukhani v. Caltex (India) Ltd.21,
the court cited with approval the views of Scrutton L.J. in Comptoir Commercial
Anversois v. Power Son and Co.22 cited by Lord Morton of Henryton in Pragdas
Mathuradas v. Jeewanlal23, “The Court... ought not to imply a term merely because it
would be a reasonable term to include if the parties had thought about the matter...”
In Trollope & Colls Ltd. v. N.W. Metropolitan Regional Hospital Board24, the court
held that “... If..., the terms of a contract are explicit and free from ambiguity, those
terms will be applied even if the court considered that some other term would be
more appropriate...” In D. Vanjeeswara Aiyar v. The District Board of South Arcot25,
the court refused to imply a term inconsistent with the express terms of the
contract and held that “...There is no room, however, for an implied contract where
there is an express contract in existence...”
13. It is therefore averred that since Clause 42 expressly stipulated that any breach
committed by SUESS of any covenants of confidentiality will hold SUESS liable for
liquidated damages, the clause cannot possibly be extended to any alleged breach of
confidentiality by VEX.

14. It is beseeched before this Hon‟ble Court that in the instant case SUESS had
asked VEX to advise them on the situation arising out of the breach of contract.
Further, SUESS then went on to act on the advice so tendered by VEX. It is averred
that such conduct on part of SUESS must be inferred as a waiver of their right to
claim damages.

15. It is submitted that Section 6326 of the Indian Contract Act, 1872 gives the
promisee the power to dispense with or remit performance of a promise. This
statutory provision enables a promisee to waive his rights under a contract;
however, the statute is silent on the matter of what constitutes a waiver. According
to Halsbury’s Laws of England27, a waiver is a term used to describe a process
whereby one party voluntarily grants a concession to the other party by not
insisting upon the precise mode of performance. In Craine v. Colonial Mutual Fire
Insurance Co. Ltd.28, the court laid down essentials to construe a waiver. First, some
distinct action ought to be done to constitute waiver, next it must be intentional and
lastly, it must be with knowledge. The waiver can either be oral, in writing or may
be inferred from the conduct of the parties.29 In Bishwanath Balkrishna v.
Rampeyari Devi30, the court held that even though a tenant has the right to have
future rent adjusted to the last, the intention to adjust had to be communicated or it
should be capable of being inferred from the surrounding circumstances before the
tenant becomes a defaulter. It is further submitted that in Bhagwati Oxygen Ltd. v.
Hindustan Copper Ltd.31, the court inferred from the conduct of HCL where it
continued to accept sub-standard gas from BOL to have waived its right to claim
damages for the same.
16. In the instant case, it is averred, the act of asking of advice constituted the first
essential of Colonial Mutual Fire Insurance case, intention is demonstrated by acting
on the said advice and the fact that both these acts took place after sending the legal
notice dated October 16, 201032 shows that SUESS had knowledge of its rights,
thereby fulfilling the third essential. Therefore it was fairly inferred from the
conduct of SUESS that by taking advice from the alleged perpetrator of the situation
and then acting on it, SUESS had waived its right to claim damages from VEX.

PRAYER
THEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED,
REASONS GIVEN AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE
PLEASED TO::

TO HOLD
THAT CLAUSE 41 OF THE CONTRACT DATED AUGUST 2, 2007 IS VALID.
THAT PERSUESS INC. CANNOT INVOKE CLAUSE 42 OF THE CONTRACT DATED
AUGUST 2, 2007.
THAT PERSUESS INC. IS NOT ENTITLED TO CLAIM DAMAGES.
TO DIRECT
THE PARTIES TO SETTLE THE DISPUTE THROUGH ARBITRATION AS PER CLAUSE
41 OF THE CONTRACT DATED AUGUST 2, 2007.
TTOO SSEETT AASSIIDDEE
THE ORDER PASSED BY THE HIGH COURT
MISCELLANEOUS
AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE APPELLANTS

SYNOPSIS OF FACTS

Shaheen and Sohail: Shaheen, a shia Muslim married Sohail, a sunni Muslim.
Shaheen is cousin sister of Afreen who is Sohail’s cousin sister on maternal side.

Relocation to Navi Dally: The couple relocated to Navi Dally and started
living in a 1 BHK apartment in Greater Palash owned by Amir, Sohail’s brother, a
permanent citizen of UK, but the maintenance charges of the flat were paid by
Sohail. They have got a flat in lottery in Vistar Vihar Extension –Phase 3. Sohail set
up a registered partnership enterprise Sohail & Sahil Associates with Sohail’s
college friend Sahil.

The Dispute: After relocation to Navi Dally, Shaheen wanted to have a child
and stay at home while Sohail thought it was too early leading to many heated
arguments. Afreen was unsuccessful in intervening between two. On November 10,
2010, Sohail and Shaheen had a heated argument over the same issue. After the
argument, Sohail returned after 2 hours from a walk and divorced Shaheen with
three pronouncements of “talaq”. Afreen was a witness to this and continues to live
in the said apartment. Sohail moved out of the house and started living at a rented
guest house from his partnership firm.

Filing of the suit: Shaheen filed an application under Domestic Violence Act,
2005 before Magistrate in Navy Dally to refrain Sohail and Afreen from
dispossessing her from her apartment and approached civil court to get a
declaration that the divorce is a nullity which was defended by Sohail. Sohail argued
that Domestic Violence Act, 2005 to the extent that it gives rights to women beyond
the period of iddat is against his fundamental right to practise his religion while
Afreen argued that she can’t be made respondent under Domestic Violence Act.

Writ petitions: Shaheen filed a writ petition challenging the order of the Civil
Judge, District Court of Navy Dally. Sohail filed a writ petitions challenging the
Domestic Violence Act, 2005. Both matter have been connected by an order of the
Navy Dally High Court and are listed together for final disposal.
 
STATEMENT OF ISSUES

THE APPELLANTS RESPECTFULLY ASKS THE HON’BLE SUPREME COURT OF

INDIA, THE FOLLOWING QUESTIONS:

ISSUE – I

WHETHER THE DIVORCE NOT BEING IN CONFORMITY WITH ISLAMIC LAW BE

DECLARED AS A NULLITY?

ISSUE – 2

WHETHER DOMESTIC VIOLENCE ACT, 2005 TO THE EXTENT THAT IT GIVES

RIGHTS TO WOMEN BEYOND THE PERIOD OF IDDAT IS AGAINST ARTICLE 25 OF
THE CONSTITUTION?

ISSUE – 3

WHETHER THE COURT SHOULD REJECT SHAHEEN’S APPLICATION UNDER THE

DOMESTIC VIOLENCE ACT AND WHETHER AFREEN CAN BE MADE RESPONDENT
UNDER THE SAME ACT?

SUMMARY OF ARGUMENTS NULLITY OF DIVORCE

It is humbly submitted that triple-talaq is a recognized as a principle in Mahomedan

law and its application to Indian cases has been affirmed by many judicial
interpretations allowing it. Further, principles of Mahomedan Law specifically
disallow the judiciary from taking any novel interpretations of Muslim law. Finally,
Sohail being a Sunni is well within his rights to divorce by triple-talaq.

DOMESTIC VIOLENCE ACT BEING AGAINST ARTICLE 25 OF THE CONSTITUTION.

It is submitted that personal laws are not susceptible to the workings of Part III of
the Indian Constitution as they cannot be called “laws” or “laws in force” under
Article 12. Further, judicial and legislative precedents show that legislature is also
not in favour of allowing the functioning of Part III susceptible to personal laws.
REJECTION OF SHAHEEN’S APPLICATION UNDER THE DOMESTIC VIOLENCE ACT
AND AFREEN’S STATUS OF RESPONDENT.

It is humbly submitted that Shaheen is not a victim of domestic violence.

Further,the Greater Palash Apartment cannot be a “shared household” within the
meaning of The Domestiv Violence Act, 2005. Lastly, Afreen cannot be made a
respondent as she is not I a domestic relationship with Shaheen and being a female
relative, no order for her removal can be passed under Section 19 of the domestic
Violence Act, 2005.
 

ARGUMENTS ADVANCED

I. WHETHER THE DIVORCE NOT BEING IN CONFORMITY WITH ISLAMIC LAW

BE DECLARED AS A NULLITY?

A. THAT TRIPLE-TALAQ IS RECOGNIZED UNDER THE MUSLIM PERSONAL

LAW APPLICABLE IN INDIA.

1. It is most humbly submitted that a valid marriage has been solemnized

between a Sunni male and a Shia female. In the case of Aziz Bano v. Muhammad , a
Shia female (inter alia) sought to declare her marriage with a Sunni male as a nullity
– the contention was refused by the court since there is nothing against it in the
Quran or any other source of Islamic law. Section 32 of Mulla’s Principles of
Mahomedan Law mentions that the rights and obligations of the wife will be
governed by the law to which she belonged at the time of marriage. In Aziz Bano
the court cited with approval Ameer Ali’s commentary on Muhammadan Law on the
same point.

2. It is submitted that under all schools of Muslim law, the husband may
unilaterally divorce his wife without assigning any cause. Further, of the different
modes of talaq allowed in Islam, triple-talaq is specifically allowed and is known as
one of the forms of talaq-ul-bidaat being an irrevocable talaq. In Saiyid Rashid
Ahmad and Anr. v. Mt. Anisa Khatun and Ors. , the court with approval the views of
Sir R. K. Wilson, in his Digest of Anglo-Mahomedan Law (5th Edition) that the triple-
talaq is a valid form of divorce under talaq-ul-bidaat. In Ahmad Giri v. Mst. Begha ,
the court cited with approval Ameer Ali's Mohammadan Law, Vol. II (1929 Edition)
and refused to negate the validity of talaq-ul-bidaat. Not only this, it also went so far
as to warn the lower judiciary from giving any novel or innovative interpretations
of the sharia as judicial officers are not learned in the sharia. This warning has been
reiterated by the Supreme Court in Ahmedabad Women’s Action Group (AWAG)
and Ors. v. Union of India in deciding whether Muslim personal law may be
amended by judicial interference. It ruled that personal laws are a matter of state
policies with which the Court does not have any concern.

3. Further, rules of interpretation of Mahomedan law do not allow

interpretations of the Quran in opposition to express rulings of Mahomedan
commentaries of great antiquity and high authority. Similarly, hadiths or other
ancient texts should not be interpreted so as to deduce new rules or interpretations
which the ancient doctors of the law have not themselves drawn.

4. It is averred therefore that Sohail being a Sunni is within his rights to give a
triple-talaq and that court cannot and must not interpret settled and recognized
provisions of Muslim personal law.

II. WHETHER DOMESTIC VIOLENCE ACT, 2005 TO THE EXTENT THAT IT

GIVES RIGHTS TO WOMEN BEYOND THE PERIOD OF IDDAT IS AGAINST ARTICLE
25 OF THE CONSTITUTION?

A. THAT PERSONAL LAWS OF THE PARTIES ARE NOT SUSCEPTIBLE TO PART

III OF THE CONSTITUTION.

5. It is submitted that the Supreme Court has reiterated many a times that
personal laws of an individual are not subject to Part III of the Constitution. In
Krishna Singh v. Mathura Ahir , the court upheld the same and further urged them
to enforce the law from recognized and authoritative sources of Hindu Law. Later in
Maharishi Avdhesh v. Union of India , a challenge on the Muslim Women
(Protection of Women on Divorce) Act, 1986 had been denied stating that even
codified personal law cannot be tested on the touchstone of fundamental rights.
Later in Ahmedabad Women’s Action Group v. Union of India , the court held that it
cannot interfere with personal laws as they are a matter of state policy.

6. In State of Bombay v. Narasu Appa Mali , the court held that the constitution
drafters, in spite of knowing that there exist different personal laws for different
communities, still left them out of Part III of the Constitution due to the practical
difficulties of evolving a uniform civil code acceptable to all communities and the
building of a social climate conducive to it. These concerns were echoed by the
Supreme Court in and observed that this may in fact be counterproductive to the
unity and integrity of the nation. It was also observed in Narsu Appa Mali and
affirmed later in Madhu Kishwar and Ors. v. State of Bihar that Article 14 does not
mandate an all-embracing approach to every legislation – each community is a
different class and whether they are prepared to accept the social reform is the
matter for consideration.
7. It is submitted that in Mohd. Ahmed Khan v. Shah Bano Begum & Ors. the
court extended Section 125 of the Cr.PC to Shah Bano but the landmark judgement
was quickly made ineffective with the introduction of Muslim Women (Protection
of Rights on Divorce) Act, 1986. Further, in Danial Latifi and Anr. v. Union of India ,
the court noted the lesson learned from Shah Bano , that it will not be wise to start
from a clean slate, forgetting the history of the enactment and therefore refused to
give any rights beyond the confines of Mohamedan Law.

8. It is submitted that in the instant case, rights conferred by the Domestic

Violence Act, 2005 go beyond the mandate of Mahomedan Law and are therefore
against Article 25 of the Constitution. It cannot be argued that the provisions of the
latter law are against Fundamental Rights as Part III of the constitution does not
extend to personal laws. Judicial authorities and legislations have evinced that the
Muslim community is not yet ready to accept any drastic social reform.

III. WHETHER THE COURT SHOULD REJECT SHAHEEN’S APPLICATION UNDER

THE DOMESTIC VIOLENCE ACT AND WHETHER AFREEN CAN BE MADE
RESPONDENT UNDER THE SAME ACT?

A. THE COURT SHOULD REJECT THE APPLICATION OF SHAHEEN UNDER THE

DOMESTIC VIOLENCE ACT, 2005.

9. It is asseverated that Shaheen is not a victim of domestic violence. Further,

the facts of the case do not merit a residence order. Afreen cannot be made a
respondent under the Domestic Violence Act, 2005. Without prejudice to the other
arguments, since there has been a valid divorce, the Act does not apply to the
parties.

B. THAT THE GREATER PALASH APARTMENT IS NOT A SHARED HOUSEHOLD

UNDER SECTION 2(S) OF THE ACT

10. The Supreme Court in S.R. Batra v. Taruna Batra authoritatively pronounced
that under the definition of “shared household” in section 2(s) of the Act, a wife
could not claim residence or receive an injunction from dispossession of property
where the mother-in-law owned the house. A 'shared household' would only mean
the house belonging to or taken on rent by the husband, or the house which belongs
to the joint family of which the husband is a member. In the present case, the
Greater Palash apartment belongs to husband’s brother Amir . The apartment might
have been their matrimonial home never their shared household, so no claim from
the wife lies.

11. In Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel , the Hon’ble

Supreme Court, inter alia, observed as under: “It is well-settled that apparent state
of affairs shall be taken as the real state of affairs. It is not for an owner of the
property to establish that it is his self- acquired property and the onus would be on
the one who pleads contra." From the fact sheet it is clear that the husband was
living only as a permissive licensee in the flat and had no legal right therein. Thus
the apartment cannot be called as a shared household.

C. THAT THE WIFE IS NOT A VICTIM OF DOMESTIC VIOLENCE HOUSEHOLD”

UNDER SECTION 2(S) OF THE ACT.

12. In Samar Ghosh v. Jaya Ghosh Hon’ble Supreme Court held that, “mere
trivial irritations, quarrels, normal wear and tear of the married life... is not
emotional abuse”. Married life should be assessed as a whole and a few isolated
instances would not constitute mental or emotional harm. Thus, in the present
case, a few heated exchanges over contradictory lifestyles would not amount to
domestic violence.

13. When there was no jural relationship of man and his wife between the
parties, a case under the Act prima-facie is not maintainable. An act of domestic
violence cannot be committed on a divorced wife, who is not living with her
husband or family and is free to live wherever she wants. If the domestic
relationship does not continue in the present, a person cannot be made a
“respondent” under the Act on the ground of a past relationship. A wife has no right
to marital home after divorce.

14. Sympathy or sentiment can be invoked only in favour a person who is

entitled thereto. It should never be taken into consideration as a result whereof the
other side would suffer civil or evil consequences. The definition of domestic
violence pre-supposes that the woman is living with the person who committed
violence and domestic relationship is not dead buried or severed. This does not
speak of past violence which a woman suffered before grant of divorce.

D. THAT THE COUSIN CANNOT BE MADE A RESPONDENT UNDER THE ACT.

15. It is respectfully submitted that under Section 19, order for removal can’t be
obtained against a female relative. Further, nothing in fact suggests that the conduct
of the cousin amounted to domestic violence and that she played the role of a
conciliator. Even the claim for alternative accommodation can only be made against
the husband and not against the husband's in-laws or other relatives. For the
purpose the Act, where the object is to protect a woman from domestic violence,
"family" has to be defined as a collective body of persons who live in one house
under one head or management . This test is not fulfilled by the cousin. She has
lived with the couple only for one month and cannot be said to have had a domestic
relationship with the wife.
 16. Further, the Act is applicable only against the ‘respondents’ who had been in
‘domestic relationship’ with the ‘aggrieved person.’ . Amir, the husband’s brother,
has never been in a domestic relationship or had a moral or legal
responsibility/obligation towards his brother's wife. Thus, no order can be passed
against his property.

PRAYER

HEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE
PLEASED TO:
TO HOLD
THAT THE DIVORCE IS VALID.
THAT THE BENEFITS CONFERRED BEYOND THE PERIOD OF IDDAT ARE
AVERSE TO ARTICLE 25.
THAT AFREEN CANNOT BE MADE A RESPONDENT UNDER THE DOMESTIC
VIOLENCE ACT.
TO SET ASIDE
THE ORDER PASSED BY THE LD. DISTRICT MAGISTRATE OF NAVY DALLY.

MISCELLANEOUS
AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE SOHAIL & OTHERS

2 Moot Court No: 2 (Criminal Case)

Moot problem

Yenkappa (A-1), appellant in Criminal Appeal No. 171 of 2005 is the father of
Bhimanna (A-2), who is the appellant in Criminal Appeal No. 46 of 2005, and
Suganna (A- 3), is the nephew of Yenkappa (A-1). Deceased Bheemanna was the
nephew of Yenkappa(A-1). Yenkappa(A-1) owns land adjacent to the land of the
deceased Bheemanna in revenue estate of village Buddinni, Police Station
Ramdurga, in the district of Raichur. There was a dispute between Yenkappa and
the deceased over the land of the deceased as, deceased refused to give him right of
passage through his land. Thus, a Panchayat was convened in the village, wherein it
was decided that neither of the parties will enter the othersâ €™ land, to use the
same as a pathway.

On 17.11.1999 at about 4.00 p.m., Yenkappa(A-1), alongwith Bhimanna (A-2) and

Suganna (A-3), was returning home with agricultural implements i.e. axes and a
plough. They attempted to use the land of the deceased as a pathway. The deceased
Bheemanna, who was present on his land alongwith his wife Paddamma (PW.1)
and mother, namely, Bheemava, obstructed the accused persons asking them not to
pass through his land. Yenkappa(A-1) then started hurling abuses in filthy language
and instigated Bhimanna (A-2) and Suganna (A-3) to assault the deceased. Thus,
Bhimanna (A-2) and Suganna (A-3) began assaulting the deceased with axes over
his head and right hand. Yenkappa (A-1) assaulted the deceased Wooden part of a
plough. Paddamma (PW.1) and Bheemava, mother of the deceased went to save the
deceased, but they too, were threatened with assault. Similar threats were hurled
when Rangayya (PW.6), nephew of the deceased and his father Hanumappa
approached the place of occurrence. The accused persons left the place after
assaulting the deceased, throwing away the axes and wooden part of the plough.
Rangayya (PW.6) brought a bullock cart as asked by Paddamma (PW.1) from the
village and the deceased was then taken to Ramdurga Police Station. Upon the
advice of the police, the deceased was taken in a mini lorry, driven by Mahadevappa
(PW.10) to Deodurga Hospital and when they reached there at 8.00 p.m., the doctor
declared Bheemanna dead. On the basis of the complaint submitted by Paddamma
(PW.1), an FIR was lodged at 8.15 p.m. under Sections 143, 147, 148, 302, 323 and
504 read with Section 149 IPC. Investigation was initiated by Rajashekhar (PW.14),
Circle Inspector.

C. The inquest was conducted over the dead body of the deceased Bheemanna in
the presence of Panchas, including Basawarajaiah (PW.2). The post-mortem was
conducted by Dr. Patil Prabhakar (PW.12). The investigating officer recovered the
axes and the wooden part of the plough used in the crime and sent the same for FSL
examination and, subsequently, the three appellants were also arrested. After
completion of the investigation, charge-sheet was filed against the appellants for
the offences punishable under Sections 447, 504, 302 read with Section 34 IPC.

D. Upon conclusion of the trial in Sessions Case No. 40 of 2000, the learned Sessions
Judge vide judgment and order dated 19.6.2001, convicted Bhimanna (A-2) for the
offences punishable under Sections 447, 504, 302 read with Section 34 IPC and
awarded him life imprisonment with a fine of Rs.2,000/-. So far as Yenkappa (A-1)
and Suganna (A-3) are concerned, they were only convicted under Sections 447,
504 read with Section 34 IPC.

E. Being aggrieved, Bhimanna (A-2) preferred Criminal Appeal No. 839 of 2001 and
the State of Karnataka filed Criminal Appeal No. 1132 of 2001 against the accused
Yenkappa (A-1) and Suganna (A-3). The High Court has dismissed the appeal of
Bhimanna (A-2) and allowed the appeal of the State convicting Yenkappa (A-1) and
Suganna (A-3) also under Section 302 IPC. Hence, these appeals.
Appellants, has submitted that Bhimanna (A-2) was wrongly convicted by the
courts below under Section 302 read with Section 34 IPC, as the prosecution failed
to explain adequately the genesis of the case. The deceased Bheemanna had no land
in close proximity to the land of A-2. Therefore, the question of any dispute could
not arise. The same was proved by way of cogent evidence and the courts below
failed to appreciate the same in the correct perspective. The presence of witnesses,
particularly Paddamma (PW.1) and Rangayya (PW.6), is doubtful, for the reason
that Paddamma (PW.1) had given birth to a girl child only one month before the
date of such incident, and it was thus highly unlikely, that in such a physical
condition, she would be able to do any agricultural work. Bheemava, mother of the
deceased, was in fact present at the place of occurrence, and has not been examined
by the prosecution. Thus, the prosecution is guilty of withholding a material
witness. Rangayya (PW.6) could not have been present there for the reason that he
did not have land in close proximity to the place of occurrence. More so, it was not a
pre- determined assault and the incident clearly occurred in the spur of the
moment. The weapons used in the crime were basically agricultural implements
with which the appellants had been working in their fields. The High Court reversed
the judgment of the trial court so far as the acquittal of Yenkappa (A-1) and
Suganna (A-3) is concerned, without applying the parameters laid down in this
regard, by this Court. The High court erred in convicting A-1 and A-3 for the
offences punishable under Section 302 IPC, as there is no evidence available to
show, that all the accused acted in furtherance of common intention. Thus,
conviction of either of the appellants under Section 302 IPC is not justified and the
appeals deserve to be allowed.

4. On the contrary, Shri V.N. Raghupathy, learned standing counsel appearing for
the State has opposed the appeals, contending that no fault can be found with the
judgment of the High Court. After re- appreciation of the evidence on record, the
High Court reached the correct conclusion that all three appellants were
responsible for the homicidal death of Bheemanna. The deceased suffered 12
injuries. In the opinion of the Dr. Patil Prabhakar (PW.12), injury nos. 1 and 12
could have been caused by Bhimanna (A-2), and thus, as a natural corollary, injury
nos. 2 to 11 would have been caused by Yenkappa (A- 1) and Suganna (A-3). Thus,
not convicting them for the said injuries and restricting their conviction under
Sections 447 and 504 read with Section 34 IPC cannot be justified. The trial
Courtâ €™s decision cannot be justified in regard to the fact that charges were not
framed against A-1 and A-3 by it, for any other offence owing to the fact that, the
same was not provided for by the Investigating Officer in the charge sheet filed by
him. The High Court has rightly convicted Yenkappa (A-1) and Suganna (A-3) for
the offences punishable under Section 302/34 IPC. The appeals lack merit and are
liable to be dismissed.

At the time of autopsy, the following injuries were found on the body of the
deceased Bheemanna: . Incised wound of size 3" X 0.75" X brain deep situated in the
middle of the head. Edges everted, blood clots and brain matter present. Underlying
fracture of skull bone seen and felt.

2. Incised wound transversely situated in the dorsum of the fore arm 2.5" above the
right wrist joint, size 3" X 0.5" X muscle deep. Clots present, edges everted and clear
out. Lacerated wound of size 1" X 0.5 X muscle deep behind the pinna of left ear.
Clots present. Contusion of size 3" X 1" in the left shoulder obliquely above
downwards. Lacerated wound of size 3" X 0.5" X muscle deep situated in the
anterior aspect of the fore arm in the middle. Lacerated wound in the middle of the
right leg anteriorly size 1" X 0.5" X muscle deep clots present. Contusion in the left
side of the back obliquely in the middle size 3" X 2". Contusion in the right side of
the flank side of the chest size 3" X 0.5". Lacerated wound in the medial aspect of
the right knee size, 2" X 0.5" X muscle deep. Clots present. Contusion in the left-side
of the chest in the lower end, size 3" X 0.5".

Upon dissection, Dr. Patil Prabhakar (PW.12) noticed the following internal injuries.

1. Fracture of front parietal bone in the middle of the head, size 1" X 0.25" X brain
deep, brain matter visible and silted out. Fracture underneath, brain lacerated, size
1" X 0.5" X 0.5".

2. Fracture of thorasic rib 9the and 10 ribs anteriorly in the middle. Laceration of
lower lobe of lung, size 1.5" X 0.5" Blood present in the thorax about 200 ML.

7. So far as the injuries are concerned, Dr. Patil Prabhakar (PW.12) has clarified in
his cross-examination that the injury Nos. 1 and 12 were grievous in nature and
were actually responsible for the death of the deceased Bheemanna. Lacerated
injuries were 5 in number, though the same were simple in nature and they could
not have been caused by the blunt portion of an axe or by using a stick.

8. Paddamma (PW.1) deposed that her husband owned land, adjacent to the land of
A-2. There was some dispute regarding the pathway between them. A Panchayat
was convened to resolve the dispute, and the parties were restrained from using
the land as passageway. She stated that she was working in the field alongwith her
husband and mother-in-law on 17.11.1999. At about 4.00 p.m., the accused persons,
while going to the village, after finishing their work in the adjacent field, wanted to
pass through her land. Her husband raised an objection. Yenkappa (A-1) then
started abusing the deceased and instigated the other accused persons to assault
him. The appellants used axes, and the wooden part of a plough to injure her
husband. Her husband, as a result, fell down. When she tried to save him, she too,
was threatened by the appellants. Once her husband had fallen, the accused,
however, stopped the assault. (A-2) threw down there and the accused left the
place saying that the victim had fallen. Rangayya (PW.6), who came to the said
place, was asked to bring a bullock cart from the village, in which they then took the
deceased to the police station. Upon the advice of the police the deceased was taken
to the hospital, where he was declared dead. She has also admitted in her cross-
examination that the place of occurrence was about 1 km. away from her house and
that she had given birth to a girl child one month prior to the date of occurrence of
such incident. Her mother-in-law, who was also present at the place of occurrence
was suffering from weak eye-sight, and no longer had good vision as a result of old
age.

9. Rangayya, in turn, (PW.6), deposed that he was the cousin of the deceased and
was working in his field. There was a dispute between the appellants and the
deceased with respect to using the land of the deceased, as passage. He witnessed
the appellants causing injuries to the deceased and he corroborated the version of
events as given by Paddamma (PW.1). In his cross-examination, it was also stated
by Rangayya (PW.6) that the accused persons had filed a case against the deceased
in court with respect to the aforementioned land dispute.

10. Venkat Rao (PW.8), Junior Engineer of PWD, after inspection and examination of
the revenue record, prepared a site plan for the area, showing that the lands of the
deceased and the appellants were, in fact, in close proximity to each other and were
merely demarcated by a bund.

11. The trial Court after appreciating the evidence on record, came to the
conclusion that all three accused (A-1 to A-3) did not act in furtherance of any
common intention. Bhimanna (A-2) was solely responsible for the death of the
deceased. Therefore, Bhimanna (A-2) alone could be convicted under Section 302
IPC and further under Sections 447and 504 read with Section 34 IPC. However,
Yenkappa (A-1) and Suganna (A-3) acted without sharing any common intention
with Bhimanna (A-2). Thus, they could not be convicted under Section 302 IPC and
could be convicted only under Sections 447 and 504 read with Section 34 IPC. The
court further held that Yenkappa (A-1) and Suganna (A-3) could also be convicted
for the offence of causing injury Nos. 2 to 11, but no charge had been framed under
any of the Sections 323, 324, 325, 326 and 327 IPC in this regard. Therefore, no
punishment could be awarded to them for the same. The trial Court held as under:

The prosecution has proved the charge under Section 302 read with Section 34 IPC
only against Bhimanna and further the other charges under Sections 447 and 504
read with Section 34 IPC are proved against Yenkappa (A-1) and Suganna (A-3).
Even though this court has accepted that A-1 and A-3 have also assaulted by Mos. 1
to 3 respectively, on the deceased, but those assaults are not the direct result of
death of the deceased Bheemanna. Moreover, in the charge- sheet, there is no
incoporation of charges such as Sec. 323, 324, 325, 326 or 327 of IPC against these
accused. Hence, in the absence of such specific charge regarding causing bleeding
injuries by deadly weapons, by these A-1 and A-3, this court is unable to convict
them under any such charge, which is admittedly not incorporated in the charge-
sheet and also not framed against them by this court.

12. The High Court, without reversing the finding recorded by the trial court, that
there was no meeting of minds of all the accused with respect to causing such
grievous injuries to the deceased, held that, as Yenkappa (A-1) and Suganna (A-3)
had also been charged under Section 302/34 IPC, they too, could be convicted
under Section 302 IPC and hence allowed the State appeal convicting them also
under Section 302/34 IPC. The High Court held as under:

In view of the above, we are of the clear view that the trial court though rightly held
that all the accused had committed the offences punishable under Sections 447 and
504 read with Section 34 of IPC and A-2 has committed the offence punishable
under Section 302 of IPC, it has erroneously held that A-1 and A-3 cannot be held
guilty for the offence of murder punishable under Section 302 of IPC, even though,
Section 34 of IPC was invoked by the prosecution. So, we do not agree with the
observations made in Para Nos. 36 to 39 of the impugned judgment and conclusion
arrived at by the trial court so far as AI and A3 are concerned with regard to their
guilt for the offence under Section 302 read with Section 34 of IPC.

In the result and for the foregoing reasons, Criminal Appeal No. 839/2001 filed by
A-2 is dismissed whereas, Criminal Appeal No. 1132/2001 filed by the State is
allowed and Accused No. 1 and 3 are held guilty for the offence punishable under
section 302 read with 34 of IPC also and accordingly convicted and sentenced to
undergo imprisonment for life like that of A-2.

13. Thus, it is evident that both the courts below after appreciating the evidence
available on record, came to a conclusion regarding the participation of all three
appellants. The trial court could convict Yenkappa (A-1) and Suganna (A-3), only for
the offences punishable under Sections 447 and 504 IPC, for want of framing of
charges under any other section of IPC.

14. It is a matter of great regret that the trial court did not proceed with the case in
the correct manner. If the trial Court was of the view that there was sufficient
evidence on record against Yenkappa (A-1) and Suganna (A-3), which would make
them liable for conviction and punishment for offences, other than those under
Sections 447 and 504/34 IPC, the court was certainly not helpless to alter/add the
requisite charges, at any stage prior to the conclusion of the trial. Section 216 of the
Code of Criminal Procedure, 1973 (hereinafter called â €˜Cr.P.C.â €™) empowers the
trial Court to alter/add charge(s), at any stage before the conclusion of the trial.
However, law requires that, in case such alteration/addition of charges causes any
prejudice, in any way to the accused, there must be a fresh trial on the said
altered/new charges, and for this purpose, the prosecution may also be given an
opportunity to recall witnesses as required under Section 217 Cr.P.C.

15. In Hasanbhai Valibhai Qureshi v. State of Gujarat, AIR 2004 SC 2078, this Court
held:

Therefore, if during trial the Trial Court, on a consideration of broad probabilities of

the case, based upon total effect of the evidence and documents produced is
satisfied that any addition or alteration of the charge is necessary, it is free to do so,
and there can be no legal bar to appropriately act as the exigencies of the case
warrant or necessitate.

16. Such power empowering alteration/addition of charge(s), can also be exercised

by the appellate court, in exercise of its powers under Sections 385(2) and 386
Cr.P.C.

In Kantilal Chandulal Mehta v. State of Maharashtra & Anr., AIR 1970 SC 359, this
Court while dealing with the power of the appellate Court under the earlier Code
held:

The power of the Appellate Court is set out in Section 423 of the Cr.P.C and invests
it with very wide powers. A particular reference may be made to Clause(d) of sub-
section (1), as empowering it even to make any amendment or any consequential or
incidental Order that may be just or proper. Apart from this power of the Appellate
Court to alter or amend the charge, Section 535 Cr.P.C, further provides that, no
finding or sentence, pronounced or passed shall be deemed to be invalid merely on
the ground that no charge has been framed unless the Court of Appeal or revision
thinks that the omission to do so, has occasioned failure of justice, and if in the
opinion of any of these courts a failure of justice has been occasioned by an
omission to frame a charge, it shall order a charge to be framed and direct that the
trial be recommenced from the point immediately after the framing of the charge.

17. Thus, we are of the considered opinion that the trial court committed a grave
error in acquitting Yenkappa (A-1) and Suganna (A-3) for the offence of causing
injuries to the deceased, in spite of there being sufficient evidence on record against
them in this respect, simply for the reason that the police did not file a charge-sheet
in relation to such offences committed by them. Thus, the trial court should have
altered/added the requisite charge(s) and proceeded with the case in accordance
with law.

18. In such a fact-situation, a question also arises as to whether a conviction under

any other provision, for which a charge has not been framed, is sustainable in law.
The issue is no longer res integra and has been considered by the Court time and
again. The accused must always be made aware of the case against them so as to
enable them to understand the defence that they can lead. An accused can be
convicted for an offence which is minor than the one, he has been charged with,
unless the accused satisfies the Court that there has been a failure of justice by the
non-framing of a charge under a particular penal provision, and some prejudice has
been caused to the accused. (Vide : Amar Singh v. State of Haryana, AIR 1973 SC
2221).

Further the defect must be so serious that it cannot be covered under Sections
464/465 Cr.P.C., which provide that, an order of sentence or conviction shall not be
deemed to be invalid only on the ground that no charge was framed, or that there
was some irregularity or omission or misjoinder of charges, unless the court comes
to the conclusion that there was also, as a consequence, a failure of justice. In
determining whether any error, omission or irregularity in framing the charges, has
led to a failure of justice, this Court must have regard to whether an objection could
have been raised at an earlier stage, during the proceedings or not. While judging
the question of prejudice or guilt, the court must bear in mind that every accused
has a right to a fair trial, where he is aware of what he is being tried for and where
the facts sought to be established against him, are explained to him fairly and
clearly, and further, where he is given a full and fair chance to defend himself
against the said charge(s).

19. This Court in Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, while
considering the issue placed reliance upon various judgments of this Court
particularly in Topandas v. State of Bombay, AIR 1956 SC 33; Willie (William)
Slaney v. State of M.P., AIR 1956 SC 116; Fakhruddin v. State of Madhya Pradesh,
AIR 1967 SC 1326; State of A.P. v. Thakkidiram Reddy, AIR 1998 SC 2702; Ramji
Singh & Anr. v. State of Bihar, AIR 2001 SC 3853; and Gurpreet Singh v. State of
Punjab, AIR 2006 SC 191, and came to the following conclusion :

Therefore, unless the convict is able to establish that defect in framing the charges
has caused real prejudice to him and that he was not informed as to what was the
real case against him and that he could not defend himself properly, no interference
is required on mere technicalities. Conviction order in fact is to be tested on the
touchstone of prejudice theory.

A similar view has been reiterated in Abdul Sayeed v. State of Madhya Pradesh,
(2010) 10 SCC 259.

20. In Shamnsaheb M. Multtani v. State of Karnataka, AIR 2001 SC 921, this Court

explained the meaning of the phrase failure of justice observing that the superior
court must examine whether the issue raised regarding failure of justice is really a
failure of justice or whether it is only a camouflage. The court must further examine
whether the said aspect is of such a nature, that non- explanation of it has
contributed to penalising an individual, and if the same is true then the court may
say, that since he was not given an opportunity to explain such aspect, there was
failure of justice on account of non compliance with the principles of natural justice.
The expression failure of justice is an extremely pliable or facile an expression
which can be made to fit into any situation of a case.

21. The court must endeavour to find the truth. There would be failure of justice not
only by unjust conviction but also by acquittal of the guilty, as a result of unjust
failure to produce requisite evidence. Of course, the rights of the accused have to be
kept in mind and safeguarded but they should not be over emphasised to the extent
of forgetting that the victims also have rights. It has to be shown that the accused
has suffered some disability or detriment in the protections available to him under
Indian Criminal Jurisprudence. Prejudice , is incapable of being interpreted in its
generic sense and applied to criminal jurisprudence. The plea of prejudice has to be
in relation to investigation or trial and not matters falling beyond their scope. Once
the accused is able to show that there has been serious prejudice caused to him
with respect to either of these aspects, and that the same has defeated the rights
available to him under jurisprudence, then the accused can seek benefit under the
orders of the Court. (Vide: Nageshwar Sh. Krishna Ghobe v. State of Maharashtra,
AIR 1973 SC 165; State by Police Inspector v. T. Venkatesh Murthy, AIR 2004 SC
5117; Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114; andRattiram & Ors. v.
State of M.P. through Inspector of Police, AIR 2012 SC 1485).

22. The instant case is required to be examined in the light of the aforesaid settled
legal propositions.

The trial court has framed charges against all the appellants under Sections 447 and
504 and Section 302 read with Section 34 IPC and the points to be determined were
also framed by the trial court as under:

i) Whether the accused on account of their enmity with the deceased, trespassed on
to his land with common object, and committed the offence under Section 447 read
with Section 34 IPC.

ii) Whether the accused on the said date, time and place, intentionally insulted the
deceased by abusing him and thereby deliberately provoked him, knowing that it
would cause him to break public peace, and therefore, committed the offence under
Section 504 read with Section 34 IPC.

iii) Whether the prosecution proved that the accused on the said date, time and
place after trespassing on to the land of the deceased picked a quarrel with him due
to earlier enmity, and assaulted him thereby committing the said murder under
Section 302 read with Section 34 IPC.

iv) Whether the prosecution proved that the accused have committed the offence
under Sections 447, 504 and 302 read with Section 34 IPC with common object
beyond all reasonable doubt.

23. The trial court came to the conclusion that there was no meeting of minds and
all three appellants did not act in furtherance of any common intention. Therefore,
Yenkappa (A-1) and Suganna (A-3) could not be convicted under Section 302 read
with Section 34 IPC and they were convicted only under Sections 447 and 504 IPC
and sentences were awarded to them setting off the period spent by them in
custody during trial. The trial court was patently in error in holding that, in spite of
the fact that two accused were clearly responsible for causing injury Nos. 2 to 11,
they still could not be convicted for any offence for want of framing of charges
under any other penal provision. In such an event, the trial court would be justified
in altering/adding the requisite charge(s) or even without such alteration/addition,
punishing them for the said offences, considering the intensity of the injuries as the
same could be an offence minor than the offence punishable under Section 302 IPC.

24. The High Court came to the conclusion that, as the charge under Section 302/34
was also framed against Yenkappa (A-1) and Suganna (A- 3), they too, were liable to
be convicted under Section 302. Such a conclusion is not justified, as the High Court
has not reversed the finding recorded by the trial court that all three accused did
not act in furtherance of any common intention.

25. We have examined the number and intensity of the injuries and the role played
by each of the appellants. There is ample evidence on record particularly the
deposition of Paddamma (PW.1), wife of the deceased to show that when her
husband fell down after receiving the said injuries, the accused stopped the assault.
Bhimanna (A-2) threw down the €œMeliâ and all the accused left the place of
occurrence saying that the victim had fallen. This clearly establishes that the
appellants did not intend to kill the deceased and it all happened in the spur of the
moment upon a heated exchange of words between the parties, after criminal
trespass by the appellants on to the land of the deceased. Therefore, it does not
seem to be a pre-determined or pre-meditated case. Ends of justice would,
therefore, be met, if all the three appellants are convicted under Section 304 Part-I
read with Section 34 IPC and sentences are awarded accordingly. As a result, all the
appellants are convicted under Sections 447, 504 and 304 Part-I read with Section
34 IPC.

Bhimanna (A-2) has already served more than 13½ years in jail. Therefore, he is
awarded sentence as already undergone and it is directed that he be released
 forthwith, unless wanted in some other case. Yenkappa (A-1) and Suganna (A-3) are
awarded a sentence of 10 years RI. All of them have already served the sentences
awarded for the offences punishable under Sections 447, 504/34 IPC.

Learned counsel for the appellants has pointed out that Yenkappa (A-1) and
Suganna (A-3) have already served near about 10 years. They be released from jail
after serving the sentence of 10 years, if not already served and are not wanted in
some other case.

3 Moot Court No: 3 (Public Interest Litigation)

Moot problem

The Common Cause had filed a petition under Article 32 on the basis of a news item
which appeared in a national newspaper that the Minister of Petroleum was
personally interested in making allotment of petrol pumps in favour of 15 persons,
who were either the relations of his personal staff or sons of the Ministers, or
sons/relations of the Chairman and Members of the Oil Selection Boards, praying
for cancellation of allotments made inter alia on the ground that the allotments had
been made by the concerned minister, mala fide and the decision is arbitrary and
motivated by extraneous considerations. The Court ultimately cancelled the
allotments made in favour of the 15 persons mentioned in the petition, on a
conclusion that the allotments are arbitrary, discriminatory, mala fide and wholly
illegal. The Court also issued certain other directions in relation to the allottees and
called upon the concerned minister to show cause as to why a direction be not
issued to the appropriate police authority to register a case and initiate prosecution
against him for criminal breach of trust or any other offence under law and in
addition, why he should not be liable to pay damages for his mala fide action in
allotting petrol pumps to 15 persons mentioned therein. This judgment of the Court
is reported in 1996(6) SCC 530. While the Common Cause case was pending in this
Court, Civil Writ Petition Nos. 4003 and 4430 of 1995 had been filed in Delhi High
Court by the Centre for Public Interest Litigation, as public interest litigation, which
were pending in Delhi High Court. In those two petitions, allotment of petrol
pumps/gas agencies to various persons during the period 1992-93, 1993-94, 1994-
95 and 1995-96 had been challenged. A Transfer Petition had been filed in this
Court, which was registered as Transfer Petition No. 127/96 and this Court had
issued notice in the transfer petition and stayed further proceedings before the
High Court. In an affidavit filed by the Ministry of Petroleum in the aforesaid
transfer petition, the then Joint Secretary had stated that in 1995-96 under the
discretionary power of the Government, allotment had been made to 99 persons
and further orders had already been made in favour of 61 more persons, allotting
petrol pumps/gas agencies. One Mr. Srinivasan, Advocate had filed an affidavit
giving a long list of persons who are related to the then Prime Minister/Ministers
and other V.I.Ps and who had been allotted petrol pumps and gas agencies. On
behalf of petroleum ministry, an affidavit had been filed, stating that due inquiry
had been made through the oil companies and after due inquiry, the concerned
minister had made the allotment. This Court ultimately held that since the two writ
petitions are pending before the High Court, wherein the allotment made to all
these persons have been challenged, it would not be necessary for this Court to get
the writ petitions transferred and decide the matter. The Court, therefore, vacated
the stay order granted and directed the Registry of the Court to send all affidavits
filed by the parties in the transfer petition along with the annexures to the High
Court.

Arguments

Pursuant to the directions of this Court in Common Cause case, 1996(6) S.C.C. 530,
the Delhi High Court took up the writ petitions which had been filed as Public
Interest Litigation by the Centre for Public Interest Litigation. On examination of
the relevant files dealing with the allotment of retail outlets of petrol, LPG
distributorship and SKO/LDO dealership under the discretionary quota made by
the minister concerned, it was revealed that between January 1993 till 1996, 179
retail outlets (petrol pumps), 155 LPG distributorships and 45 SKO/DLO
dealerships had been allotted by the concerned minister under the discretionary
quota. In its order dated 29th of August, 1997, the Division Bench of Delhi High
Court came to the conclusion that the examination of files clearly shows that these
are not the cases of aberrations here or there but are cases which show a pattern of
favouritism. From the judgment of Delhi High Court in C.W. 4003/95 dated
29.8.1997, it transpires that even before the Supreme Court stayed the proceedings
by order dated 6th December, 1995 , the High Court had called upon the
respondents by order dated 2nd November, 1995 to produce the list of allotments
made under the discretionary quota of the petroleum minister for allotment of
petrol retail outlets, LPG distributorship and Kerosene distributorship from the
date of the tenure of the minister which was 18th of January, 1993. Before the Delhi
High Court, it had been contended by the allottees as well as by the Government
that the judgment dated 31st March, 1995 of the Supreme Court laying down the
guidelines, since reported in 1995 Supp.(3) S.C.C. 382 would indicate that the
Supreme Court had implidely regularised the allotments made prior to 31st March,
1995 and consequently the validity of the said allotments need not be gone into.
The High Court however was not persuaded to agree with the submissions and in
our view rightly, particularly, when in the Common Cause case [1996(6) SCC 530]
this Court has positively directed the High Court to examine the issues involved and
dispose of the two pending writ petitions in accordance with law. Since the allottees
were required to be noticed before any decision is taken, the High Court by its
order dated 11th December, 1996, constituted a Committee of three advocates and
directed them to examine all the files and submit a report in a Proforma which had
been prepared by the Court itself, after discussion with the counsel appearing for
the parties. The said Committee submitted its report, on the basis of which the
Court issued notices to various persons by its order dated 27th of February, 1997
and 20th of March, 1997 and the Court was to deal with the cases of about 400
allottees. Pursuant to the notices issued, the allottees filed their respective show
causes and then the Court heard the respective counsel for the allottees as well as
examined the report of the Committee and scrutinized the same by perusing the
original file and finally disposed of the cases of about 100 allottees by its judgment
dated 29th of August, 1997. The Court on examination of the materials before it and
on perusal of the original files, appears to have taken the view in several cases that
the discretion had been exercised on sufficient materials and after inquiry and held
those allotments to have been proper exercise of the discretion and accordingly
discharged the notices of cancellation. But in those cases, where the Court found
either there were no materials before the concerned minister in support of the
applications filed to justify the exercise of power for allotment under the
discretionary quota or such allotments had been made on account of political
patronage or some other extraneous considerations, the Court cancelled the
allotment made with certain directions therein. It would be appropriate at this
stage to notice the observations of the High Court:

Mr. Dushyant A. Dave, the learned senior counsel appearing for the appellant in
Civil Appeal No. 3090 of 2000 urged that the only ground on which the High Court
has set aside the allotment made in favour of the appellant is that there had been no
verification whatsoever regarding other members of his family and their sources of
income before exercising discretion, and therefore, since the minister approved the
allotment without any verification, the allotment is liable to be cancelled. According
to Mr. Dave, the fact that the order of allotment itself indicated that the I.O.C.Ltd.
would conduct requisite verification before issuance of Letter of Intent, it cannot be
said that the order in question was without any inquiry. Mr. Dave urged that it is
nobodys case that the I.O.C., on an inquiry came to the conclusion that the grant of
distributorship in favour of the appellant on compassionate grounds was
unjustified. That apart, the appellant himself had filed an affidavit before the High
Court, indicating his family conditions and the fact that he had no resources and he
had gathered the resources from friends, but the High Court unfortunately over-
looked these materials and directed cancellation of the allotment made in favour of
the appellant. The learned counsel also urged that the order of the High Court
would indicate that in case of several other noticees, the High Court discharged the
notice of cancellation without ascribing any reason and therefore, there was no
reason why the High Court should have cancelled the allotment made in favour of
the appellant. The learned counsel further urged that even if the High Court found
that there had been no verification, then it would have been appropriate for the
High Court to direct for a fresh verification, rather than canceling the
distributorship and the approach of the High Court is wholly uncalled for.
According to the learned counsel, the appellants case being covered under the
existing discretionary scheme, as was prevalent, and further even under the
guidelines issued by this Court in the judgment reported in 1995 Supp.(3) S.C.C.
382, individual cases of extreme hardship which in the opinion of the Government
are extremely compassionate and deserve sympathetic consideration being one of
the criteria, there was absolutely no rhyme or reason on the part of the High Court
to set aside the discretionary allotment made in favour of the appellant. He also
reiterated the arguments advanced on behalf of Mr. Rao that the judgment of this
Court in 1995 Supp.(3) S.C.C. 382 must be so construed, that allotments made under
the discretionary quota prior to the date of the said judgment were not intended to
be interfered with and as such, the High Court had no jurisdiction to examine the
allotment made in favour of the appellant, which was in the year 1993.

At any rate the earlier litigation filed at the behest of the Centre for Public Interest
Litigation was only for laying down the guidelines for exercise of the discretionary
power, as is apparent from the amended petition, the amended petition was
considered and disposed of and as such there has been no adjudication by this
Court with regard to the legality or illegality of the allotments made by the
concerned minister from the discretionary quota. The learned counsel also
vehemently submitted that in the Common Cause case, where subsequent to the
judgment in Centre for Public Interest Litigation case, legality of allotments made in
favour of 15 allottees from the discretionary quota was the subject matter for
adjudication, this Court in no uncertain terms, cancelled the allotments made and in
the very same judgment, directed the Delhi High Court where the writ petitions
were pending to dispose of the matter in accordance with law. In fact the High
Court proceeded to dispose of the matter pursuant to the aforesaid
judgment/observations of this Court in the Common Cause case. In this view of the
matter, the contention that the High Court should have applied the principle of
constructive res judicata, is wholly misconceived. So far as the observations made
by the three Judge Bench Judgment of this Court in the review petition arising out of
Common Cause case judgment, Mr. Kapoor contends that the review petition
merely related to the subsequent order, wherein this Court directed institution of a
criminal case and levied exemplary damages to the tune of Rs.50 lacs on the
concerned minister Capt. Satish Sharma. In the aforesaid premise, any observations
made by the said three Judge Bench in relation to the legality of the allotments
made by the minister from discretionary quota, cannot be treated to be of any
binding precedent. According to Mr. Kapoor, the High Court was examining the
legality of the exercise of discretion by the concerned minister on the materials
available to find out whether it was in fact an exercise of discretion on germane
materials or the discretion has been exercised arbitrarily and for extraneous
considerations in which event the order emanated out of such discretion was
required to be nullified. The High Court has applied its mind to each and individual
case of allotment under the discretionary quota and wherever some materials were
there, the High Court has discharged the notice of cancellation and it is only when
there existed no materials for the minister concerned for exercise of his discretion
and the minister passed the order of allotment without any inquiry into the
assertions made in the application, the Court has set aside the same. According to
Mr. Kapoor, the notoriety by which such discretionary allotment by a Minister has
reached, it would be unwise to interfere with well reasoned order of the High Court,
particularly when the High Court had the opportunity of examining the file from the
Ministry, in relation to each and every case of allotment under the discretionary
quota.

Mr. T.L.V. Iyer, the learned senior counsel, appearing for the Union of India,
submitted that the Union Government has no role to play and it merely complied
with the directions of the Court.

In view of the rival submissions at the Bar, the following questions arise for our
consideration:

(a) Is the Judgment of this Court in the case of Centre for Public Interest Litigation
[1995 Supp.(3) S.C.C. 382] susceptible of a construction that the Court indicated the
guidelines for future guidance and had it given its stamp of judicial approval to the
discretionary allotments already made by the date of the judgment? (b) Would the
principle of constructive res judicata as provided under Section 11 explanation 4 of
the Code of Civil Procedure or Order 2 Rule 2 CPC apply to a public interest
litigation and if so, in the case in hand, can it be said that the writ petitions filed by
the Centre for Public Interest Litigation in Delhi High Court from out of the
judgment of which the present appeals have been preferred, are barred by the
aforesaid principles on the ground that in the petition filed under Article 32 by the
said Centre, no prayer for cancellation of illegal allotments had been made, though
could have been made? and what is the impact of the observations made by the
three Judge Bench in the review petition filed by Captain Satish Sharma, which
stood disposed of by the judgment reported in 1999(6) S.C.C. 667? (c) Does the
expression over ruled in the three Judge Bench Judgment, refer to over-ruling the
judgment in the Common Cause case wholly or does it refer to only the subsequent
order in the Common Cause case, directing registration of the criminal case and its
investigation and levy of penalty/exemplary damages against Captain Sharma?

(d) The judgment of the High Court being earlier to the three Judge Bench judgment
of this Court in the review petition filed by Captain Satish Sharma since reported in
1999(6) SCC 530, is there any necessity for remitting these appeals to the High
Court for reconsideration, in the light of the subsequent three Judge Bench
judgment of this Court?

(e) Are the appellants entitled to any equitable considerations on the ground that
they have spent a substantial amount and have also operated the petrol outlets/gas
agencies for about eight years? and

(f) Can the impugned judgment of the High Court in any of these appeals be said to
be vitiated on account of non- consideration of any germane materials?

(g) Whether in a Public Interest Litigation, where large number of persons are
going to be affected, the Court is bound to issue notice under Order I Rule 8 and
does non-issuance of such notice vitiate the entire proceedings?

(h) Whether the verification supposed to have been made by the Oil Company
pursuant to the order of allotment made by the Minister, can be held to be the
proper verification for exercise of discretion by the Minister himself and in such
event whether the order of cancellation by the High Court is valid?

(i) Whether the principle decided in the judgment of this Court in Civil Appeal No.
6840 of 2001, in relation to such discretionary allotment of land in the State of
Haryana, can be made applicable to the case in hand, so that the judgment would be
made applicable

prospectively and consequently, the orders of cancellation will have to be set aside?

So far as the first question is concerned, the entire emphasis is on the directions
given by the Court in paragraph (4) of the Judgment, which is quoted hereunder:

We hereby direct that the above-quoted

norms/guidelines etc. shall be followed by the Central Government in making all

such

discretionary allotments of retail outlets for petroleum products, LPG Dealership

and SKO

Dealership, hereafter.

The appellants contention is that while the writ petition was filed in public interest,
the exercise of discretion in allotment of retail outlets for petroleum products, LPG
Dealership and SKO Dealership had been challenged and a prayer for laying down
the guidelines to regulate the exercise of discretion had been made, the Court only
laid down the guidelines and further observed that the norms and guidelines would
be followed hereafter and necessarily, therefore, there has been a tacit approval to
the earlier allotments made under the discretionary quota inasmuch as the Court
never cancelled the allotments made nor had issued any direction in that respect.
This contention in our considered opinion, cannot be sustained for two reasons.
Firstly, the amended petition which the Centre for Public Interest Litigation has
filed, merely prayed for laying down the guidelines to regulate exercise of
discretion in the matter of such allotments. Secondly, which is rather more
important is that this judgment was delivered by the Court on 31st of March, 1995.
The Common Cause had filed another petition under Article 32, alleging arbitrary
exercise of discretion in favour of 15 allottees and that petition was entertained by
this Court and disposed of by Judgment dated 25th September, 1996 and the Court
cancelled all such allotments on a finding that the Minister without keeping in view
any guidelines, allotted in exercise of his discretion in a cluster manner and the
public property have been doled out in wholly arbitrary and discriminatory
manner. If the earlier Judgment is susceptible of the construction, as contended by
the appellants, then it would not have been possible in the Common Cause case to
examine the legality of such allotments which had been made in favour of 15
persons. Instead of construing the judgment in the Centre for Public Interest
Litigation to the effect that it accords a tacit approval of the allotments made prior
to the judgment in the Common Cause case, the Court relied upon the earlier
judgment in 1995 Supp.(1) S.C.C. 382, and ultimately cancelled the orders of
allotment, having found that the allotments were made arbitrarily and for
extraneous considerations. In this view of the matter, it is difficult for us to sustain
the contention of the learned counsel, appearing for the appellants. We, therefore,
hold that the judgment of this Court in Centre for Public Interest Litigation, 1995
Supp.(3) S.C.C. 382, cannot be construed by any stretch of the imagination to be a
tacit approval of the discretionary allotments made prior to that judgment. We,
therefore, do not find any substance in this submission of the learned counsel for
the appellants.

Coming to the second question, Explanation (IV) to Section 11 of the Civil

Procedure Code postulates that any matter which might and ought to have been
made ground of defence or attack in such former suit shall be deemed to have been
a matter directly and substantially in issue in such suit. Order II Rule (2) of the Code
of Civil Procedure provides that every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the cause of action and if he
omits to sue in respect of, or intentionally relinquishes, any portion of his claim,
then he shall not afterwards sue in respect of the portion, so omitted or
relinquished. By virtue of explanation to Section 141 of the Code of Civil Procedure,
since proceedings under Article 226 of the Constitution is excluded from the
expression proceedings, therefore, the Civil Procedure Code is not required to be
followed in a proceeding under Article 226 unless the High Court itself has made
the provisions of Civil Procedure Code applicable to a proceeding under Article

226. Then again, the principles of Section 11 as well as Order II Rule 2, undoubtedly
contemplate an adversarial system of litigation, where the Court adjudicates the
rights of the parties and determines the issues arising in a given case. The Public
Interest Litigation or a petition filed for public interest cannot be held to be an
adversarial system of adjudication and the petitioner in such case, merely brings it
to the notice of the Court, as to how and in what manner the public interest is being
jeopardised by arbitrary and capricious action of the authorities. In the case
of Rural Litigation and Entitlement Kendra vs. State of U.P. 1989 Supp.(1) S.C.C. 504,
which is commonly known as the Doon Valley case, such a contention had been
raised, as is apparent from paragraph (14) of the judgment viz. the decision of the
Court dated 12th March, 1985 was final in certain aspects, including the release of A
category mines outside the city limits of Mussoorie from the proceedings and in
view of such finality it was not open to this Court in the same proceedings at a later
stage to direct differently in regard to what had been decided earlier. The Court
repelled the same by holding that the writ petitions are not inter- parties disputes
and have been raised by way of public interest litigation and the controversy before
the Court is as to whether for social safety and for creating a hazardless
environment for the people to live in, mining in the area should be permitted or
stopped. The Court hastened to add:

According to the learned counsel, the three Judge Bench accepted the contention of
the applicability of principle of constructive res judicata and, therefore, this Bench
being a two Judge Bench must be bound by the said observations or in the
alternative, may refer the matter to a larger Bench. We are not in a position to
accept either of these submissions. It may be stated at the outset that the three
Judge Bench was concerned with the review petition that had been filed in relation
to the order dated 4.11.96 since reported in 1996(6) S.C.C. 593. The learned Judges
committed an error in the beginning in thinking that the review petition filed by
Capt. Satish Sharma was in relation to both the judgments viz. 1996(6) S.C.C. 530 as
well as 1996(6) S.C.C. 593. In the review petition, the Court was concerned with the
correctness of the directions contained in the order dated 4.11.96 to institute
criminal prosecution against the concerned Minister and levy of penalty as
exemplary damages to the tune of Rs. 50 lacs. It is in that context the Court made
the aforesaid observations not noticing the fact that in 1996(6) S.C.C.530, the Court
had earlier directed the High Court to dispose of the two writ petitions pending in
the High Court and decide the legality of the order of discretionary allotment made
by the concerned minister. It is indeed interesting to notice that in paragraph 125 of
the judgment of the three Judge Bench, the Court itself had indicated that the
conduct of the concerned minister in making allotments of petrol outlets was
atrocious and reflects a wanton exercise of power by the Minister. But what the
Court wanted to examine and ultimately held was that the said action fell short of
misfeasance in public office which is a specific tort and the ingredients of that tort
were not wholly met in the case, so that there was no occasion to award exemplary
damages. It would be indeed a travesty of justice to accept the submission of the
counsel for the appellants that the three Judge Bench expressed opinion that the
principle of constructive res judicata would apply to the case in hand, so as to debar
the High Court from entertaining the writ petitions and disposing them of on
merits. As we have already noted, prior to the three Judge Bench Judgment of this
Court , the self-same order of the Delhi High Court had been assailed in as many as
79 cases by approaching this Court by way of special leave petitions and all those
petitions had been dismissed.

The extent to which corruption in the governing structure has corroded the very
core of our democracy, the notoriety which the discretionary allotment of
petroleum dealership and LPG gas agencies had acquired, the earlier petition under
Article 32 entertained by this Court at the behest of the Common Cause, the
cancellation of 15 of such allotments and finally, the express direction therein to the
High Court to dispose of the pending writ petitions after examining the individual
cases, it is difficult for us to accept the bar of principle of constructive res judicata
on the ground that the earlier judgment in the case of Centre for Public Interest
Litigation has accorded any tacit approval or the subsequent so-called observation
made in the three Judge Bench decision of this Court in the review petition. We,
therefore, unhesitatingly hold that the aforesaid contention is devoid of any
substance.

So far as the eighth question is concerned, it was repeatedly argued before us by

several counsel that the concerned minister was not required to verify and since
the order of allotment stipulates that the Oil company would verify before granting
the agency in question that itself is a good verification and consequently, the High
Court was in error in canceling the allotment on the ground that there had been no
proper verification. It is no doubt true that the Minister having exercised his
discretion and allotting a particular agency in favour of the applicant, has required
the Oil company to make necessary verification before entering into an agreement
with the allottee, but that verification supposed to have been done by the oil
company has nothing to do with the materials on which the subjective satisfaction
of the Minister was arrived at for exercise of his discretion in favour of any
individual for any justifiable reason. When a State property as distinct from a
private property is being dealt with by a Minister then it is of paramount
importance that such public property must be dealt with for public purpose and in
the public interest. The disposal of a public property undoubtedly partakes the
character of a trust and therefore, in the matter of such disposal, there should not
be any suspicion of a lack of principle. The exercise of discretion must not be
arbitrary or capricious or for any extraneous considerations. It is in that context
when the Court was examining each and every individual case of discretionary
allotment, the Court was trying to find out whether there existed some materials,
on the basis of which the Minister could be said to have arrived at his subjective
satisfaction for exercise of his discretion in favour of the applicant. It is the so-called
satisfaction of the Minister for exercise of his discretionary power and making the
grant that was being examined and scrutinized by the Court and only when the
Court found that there had been absolutely no materials or that Minister had made
the grant without making any inquiry or verification, that the Court had interfered
with the allotments in question, obviously on a conclusion that such allotments had
been arbitrarily made. The subsequent inquiry supposed to have been conducted
by the Oil company cannot replace the pre-conditions for exercise of discretion by
the Minister. If the initial order of allotment by exercise of discretion is vitiated on
the ground of absence of any materials or verification by the concerned authority
who has exercised the discretion, then the so-called subsequent inquiry by the Oil
company which operates in different fields cannot make the so-called arbitrary
order of the Minister a legal or just order. This being the position, we see no force in
the submission made by the counsel appearing for the appellants on this score. The
same accordingly stands rejected.

The next question which arises for consideration is whether the judgment of this
Court in Civil Appeal No. 6840 of 2001 and principles evolved therein can be
applied to the case in hand, so as to protect the allotments already made under the
discretionary quota. The aforesaid case no doubt was a case of allotment of land by
the Chief Minister of a State in the State of Haryana. The High Court of Punjab and
Haryana by its order dated 20th January, 1988 disposed of the case of S.R. Dass vs.
State of Haryana, 1988 Punjab Law Journal page 123, under which it formulated
certain principles on which the discretionary allotments could be made with certain
conditions. The so-called discretionary allotments made by the Government and
HUDA, pursuant to the earlier judgment of Punjab and Haryana High Court were
sought to be assailed as being contrary to certain stricter principles, which were
evolved in the case of Anil Sabharwal which stood disposed of on 5.12.97. This
Court in the appeal in question held that the stricter scrutiny required to be made
as per the guidelines evolved in Anil Sabharwals case, must be made applicable to
the period subsequent to the judgment viz. 5.12.97 and allotments made between
1988 and 1997 in accordance with the principles and guidelines indicated in S.R.
Dass case, were protected by applying the principle of prospective application, so
far as the judgment in Anil Sabharwals case. We fail to understand how the
aforesaid principle can apply to the case in hand where the allotments made prior
to the judgment of this Court in Centre for Public Interest Litigation, 1995(3) Supp.
(3) S.C.C. 382, are the subject matter of scrutiny and had been made
indiscriminately, as there had been no guiding principle for making such
allotments. Consequently, the principles evolved in Civil Appeal No. 6840 of 2001,
will have no application at all to the present appeals. The said contention, therefore,
must fail.

In view of our conclusions on the nine issues, as mentioned above, these appeals fail
and are dismissed
B OBSERVATION OF TRIAL
Observation of Proceedings in a Civil Suit
(Student has to record his/her observations step by step of different stages of
4
litigation in the 2nd and 3rd years of 3 years law course and 4 th and 5th years of 5 years
law course)
Observation of Proceedings in a Criminal Case
(Student has to record his/her observations step by step of different stages of
5
litigation in the 2nd and 3rd years of 3 years law course and 4 th and 5th years of 5 years
law course)
C OBSERVATION OF ADVOCATE’S OFFICE
Two interviewing sessions with clients
(Each student has to maintain a dairy to record interaction with clients, preparation
of documents and Court papers. Each student should observe two interviewing
6
sessions with clients at lawyer’s officer or legal aid office. This shall be recorded in the
dairy which shall be evaluated by the teacher concerned and the advocate. This will
carry 15 marks)

Preparation of documents and Court paper

(Each student will further observe the preparation of documents and Court paper and
7
record such observance in the dairy which shall be evaluated by the teacher
concerned and the advocate. This carries 7.5)

Observation of the procedure for filing the petitions

(Each student shall observe the procedure for filing the petition and record the same
8
in the dairy which shall be evaluated by the teacher concerned and the advocate. This
carries 7.5 marks.)

There shall be a Via-voce Examination all the above three components at the end
D
of the university examination.
Total Marks