1.

Adhyatma Bhattar Alwar Vs Adhyatma Bhattar Sri Devi (2002) 1 SCC 308, AIR 2002 SC
88

Legal Maxim discussed- Animus deserandi(the intention of deserting a spouse)

Case Summary

The appellant Adhyatma Bhattar Alwar, and the respondent Adhyatma Bhattar Sri Devi were
married on 22nd August, 1978 in Nalamvari Choultry at Rajabmundry. The couple stayed
together in village Palacole where the parents of the husband reside. A female child was born to
them on 12th December, 1979, whereafter they separated. The wife and daughter lived with her
parents at Rajhmundry, while the husband continued to stay with his parents at Palacole. The
husband filed a petition for dissolving the marriage under Section 13 of the Hindu Marriage Act,
1955 (hereinafter referred to as 'the Act') praying for a decree of divorce on the ground stated in
sub-clause (ib) of Sub-section 1. In the petition it was alleged, inter alia, that the father of the
respondent - wife had taken her to Rajahmundry for delivery and also stating that her mother was
not well. After birth of the child, since the respondent did not return to Palacode, the appellant,
his father and other relations made attempts to persuade the respondent's father to send his
daughter to Palacode. The attempts did not bear fruit as the respondent was insistent that the
appellant should live separately from his parents in a separate house. Since the condition was not
acceptable to the appellant, she refused to join him at Palacole. On 23rd May, 1981 the appellant
went to Rajahmundry to bring the respondent but she was not sent and the appellant was
informed that the respondent would be sent only after he got a job. It is relevant to state here that
at the time of marriage, the appellant had graduated in Commerce (B.Com); subsequently he
completed M.A. in Hindi, but he was without a job. Since all attempt to persuade the respondent
to come and live with him failed, the appellant filed the petition on 21st February, 1984 for
divorce on the ground of desertion by the wife for a period of more than two years.

Contesting the application for divorce, the respondent repudiated the allegations made by the
appellant that she had voluntarily left her matrimonial home for staying with her parents. While
admitting that she had gone to her parental home for birth of the child whereafter she had
returned to her father-in-law's house where she faced a very embarrassing situation as her father-
in-law made indecent advances towards her and her complaints to her husband about such
incidents went unheeded. She also averred that her husband appeared to be a silent spectator to
such incidents and did not even raise any protest against his father's behavior towards his
daughter-in-law. In the circumstances, the respondent pleaded that she had every justification to
insist on her husband having a separate residence. It was further alleged by her that in the month
of August, 1980 her father-in-law had made repeated attempts at molesting her and when she
vehemently protested against such behavior she got a severe beating from him. She also
complained that her husband was ill-treating and assaulting her, believing the false stories and
backbiting of his mother. She contended that it was she who was deserted by her husband and
not vice versa.

‘Desertion’ in the context of matrimonial law represents a legal conception. It is difficult to give
a comprehensive definition of the term. The essential ingredients of this offence in order that it
may furnish a ground for relief are:

(1) The factum of separation;

(2) The intention to bring cohabitation permanently to an end--animus deserendi;

(3) The element of permanence which is a prime condition requires that both these essential
ingredients should continue during the entire statutory period.

Clause (ib) of Section 13 (1) of the Hindu Marriage Act, 1955, lays down the rule that desertion
to amount to a matrimonial offence must be for a continuous period of not less than two years
immediately preceding the presentation of the petition. This clause has to be read with the
Explanation. The Explanation has widened the definition of desertion to include ‘wilful neglect’
of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence,
desertion must be without reasonable cause and without the consent or against the wish of the
petitioner. From the Explanation, it is abundantly clear that the Legislature intended to give the
expression a wider import which includes wilful neglect of the petitioner by the other party to the
marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two
essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to
bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are
essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence
of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. The petitioner for divorce bears the burden of proving those
elements in the two spouses respectively and their continuance throughout the statutory period.

The Supreme Court observed from the evidence on record, as discussed in the judgments of the
trial court and the High Court that the respondent had gone to her parents’ house for birth of the
child, which apparently cannot be construed as an expression of her desire to forsake her
husband permanently ; but after the birth of her child when attempts were made by the appellant,
his parents and relations, she laid down a condition that the appellant should live in a separate
house from his parents taking the plea that her father-in-law had attempted to molest her, which
explanation she signally failed to establish. In the meantime, father of the appellant expired some
time in 1988, putting an end to the so-called reason of misbehaviour of her father-in-law. There
is nothing on record that thereafter she expressed her desire to join her husband at the
matrimonial home. It is relevant to state here that the appellant is the only son of his parents and
as expected, he was not willing to establish a separate residence leaving his parents to live alone
in their old age. The cumulative effect of the circumstances and the conduct of the respondent is
that she had given expression of animus deserendi. Thus, the two ingredients of the matrimonial
offence of desertion, i.e., separation in fact and animus deserendi have been established by the
appellant. Supreme Court found out that the learned trial Judge, having regard to the facts and
circumstances of the case, was right in recording the finding that the husband had successfully
established the case of desertion by the wife and exercising the discretion vested under Section
13A of the Act, the learned trial Judge had granted the decree of judicial separation instead of
divorce. The High Court recorded the finding that in the absence of any evidence, direct or
circumstantial, in support of her plea of alleged indecent behaviour by her father-in-law, the
Court was not prepared to accept the allegations made by her against her father-in-law ; the
 Court without discussing any evidence, had observed that “as the cause itself has disappeared or
ceased to exist, the wife had agreed to join the husband and even before the death of the
husband’s father, she was ready and lived with the husband indeed” and arrived at the conclusion
that the wife cannot be held to have the necessary intention to put an end to the matrimonial
obligation and, therefore, could not be found guilty of deserting the husband. The High Court has
not discussed whether the alleged offer by the wife to live with her husband after the death of her
father-in-law was indeed a sincere move or merely a hollow expression bereft of any sincerity.
The High Court has also not discussed if she indeed had the desire to come and live with her
husband and what prevented her to request her parents to take necessary steps in the matter. In
the absence of any such evidence, the finding recorded by the High Court that the wife was not
guilty of deserting her husband cannot be sustained. The failure on the part of the wife to
substantiate a serious allegation of infamous conduct of indecent advances said to have been
made to her by the father-in-law, taken together with the absence and omission from her side to
demonstrate her readiness and willingness to discharge her continuing objection to return to the
matrimonial home, establish sufficiently the animus deserendi, necessary to prove legal desertion
as required under Section 13 (1) (ib). The conduct of the wife seems to be more indicative of a
firm determination not to return to the marital home and discharge the obligations attended
thereto. Therefore, the judgment of the High Court was construed as unsustainable and it was set
aside.

2. Legal Maxim discussed- Audi alteram partem

Nidhi Kaim and another Vs State of Madhya Pradesh and others AIR2016SC2865, (2016) 7
SCC 615, 2016 (7) SCJ 728

Facts:
In the facts of the case appellants here, after appearing in the PMT examinations held in the year
2008 to 2013, which was conducted by the State of M.P. through Professional Examination
Board hereinafter called “Vyapam” had conducted these examinations for getting admission in
MBBS Degree Course in various Government/ Private Medical Colleges in State of M.P., got
admissions in the MBBS degree course. And some from them were prosecuting their studies in
MBBS Course and some claimed that their studies were completed. However, by the orders
made by the Vyapam, it has cancelled the appellants’ PMT Examination results on the ground
that the detailed investigations made in conducting of PMT, shown that the appellants and
several other candidates resorted to unfair means in large scale. Such decision of cancellation of
results challenged by appellants by filing several writ petitions before the High Court, and when
High Court denied their claim, then appellants challenged the same before this bench. When
High Court held that the said case is of “mass copying”, this bench considered it necessary to
examine the case where it is of “mass copying” and whether the appellants were entitled to a
show cause notice before cancellation of their results. Mass copying, as per the Justice Abhay
Manohar Sapre, means “unfair means practiced on a large scale in examination.”
The bench analyzed around seven judgments pronounced by the top court’s justices of
concerned time and then this bench observed that when there is seen ‘mass copying’ in any case,
the institute concerned need not necessarily give any show cause notice to any individual
candidate before cancellation of his result; also it is also difficult in such cases to prove
‘copying’ was done by the candidates, but same can be done on the basis of probabilities and
circumstantial evidence.

From an analysis of the previous decisions, the following principles were enunciated by the
Supreme Court:

1. Normally, the Rule of audi alteram partem must be scrupulously followed in the cases of the
cancellation of the examinations of students on the ground that they had resorted to unfair means
(copying) at the examinations.

2. But the abovementioned principle is not applicable to the cases where unfair means were
adopted by a relatively large number of students and also to certain other situations where either
the examination process is vitiated or for reasons beyond the control of both students and the
examining body, it would be unfair or impracticable to continue the examination process to
insist upon the compliance with audi alteram partem rule.

3. The fact that unfair means were adopted by students at an examination could be established by
circumstantial evidence.

4. The scope of judicial review of the decision of an examining body is very limited. If there is
some reasonable material before the body to come to the conclusion that unfair means were
adopted by the students on a large scale, neither such conclusion nor the evidence forming the
basis thereof could be subjected to scrutiny on the principles governing the assessment of
evidence in a criminal court.

Cases such as the one on hand where there are allegations of criminal conspiracies resulting in
the tampering with the examination process for the benefit of a large number of students would
be certainly one of the exceptional circumstances indicated provided there is some justifiable
material to support the conclusion that the examination process had been tampered with.

In the light of the principles of law emerging from scrutiny of the abovementioned judgments,
judges were of the opinion that case on hand can fall within the category of exceptions to the
Rule of audi alteram partem if there is reliable material to come to the conclusion that the
examination process is vitiated.

Also, this bench necessarily observed that the Court should not act as an appellate Court over the
decision of Expert Committee for examining such issue of ‘mass copying’. Thus, the bench after
holding this case as of ‘mass copying’ decided that the procedure adopted by the Vyapam cannot
be said to be unfair or arbitrary. Moreover, the bench also found that the appellants are also not
entitled to any equitable relief. Thus, the appeals filed by the appellants were dismissed by this
bench.

3. Legal Maxim discussed-Locus Standi

Govt. of NCT of Delhi v. Manav Dharam Trust, AIR 2017 SC 2450, (2017) 6 SCC 751

Answering an important question of law, the bench of Kurian Joseph and R. Banumathi, JJ held
that the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc.,
are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by
virtue of operation of Section 24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.

All the decisions cited by the learned Senior Counsel appearing for the Appellants, no doubt,
have categorically held that the subsequent purchasers do not have Locus Standi to challenge the
acquisition proceedings. But in the present case, the challenge is not to the acquisition
proceeding; it is only for a declaration that the acquisition proceedings have lapsed in view of
the operation of Section 24(2) of the 2013 Act, and therefore, the ratio in those cases has no
application to these cases.

It is one thing to say that there is a challenge to the legality or propriety or validity of the
acquisition proceedings and yet another thing to say that by virtue of operation of a subsequent
legislation, the acquisition proceedings have lapsed.

In all the decisions cited by the learned Senior Counsel for the Appellants , Supreme Court has
protected the rights of the subsequent purchaser to claim compensation, being a person interested
in the compensation, despite holding that they have no Locus Standi to challenge the acquisition
proceedings.

Rejecting the contention that subsequent purchasers do not have Locus Standi to challenge the
acquisition proceedings, the Court said that it is one thing to say that there is a challenge to the
legality or propriety or validity of the acquisition proceedings and yet another thing to say that
by virtue of operation of a subsequent legislation, the acquisition proceedings have lapsed. It is a
declaration qua the land wherein indisputably they have an interest and they are affected by such
acquisition. For such a declaration, it cannot be said that the persons mentioned above do not
have any Locus Standi.

Stating that the 2013 Act has made a sea change in the approach on the acquisition of land and
compensation and that the Act proposes to protect the interest of those persons, among others
who are affected by the acquisition, the Court said that the subsequent purchasers/successors,
etc., are all people affected by the acquisition, and therefore, also they are entitled to seek a
declaration on lapse under the 2013 Act.

4. Legal Maxim discussed-de minimis non curat lex

Umesh Chand Gandhi v. Ist Addtnl. District and sessions judge and Another , (1994) 1
SCC 747, 1994 (23) ALR 63

Decided On: 23.09.1993

The appellant/tenant had the demised premises on a monthly rent of Rs. 40/- from Ram Lal, the
landlord. Ram Lal initiated action for ejectment of the appellant in the Court of the Small Causes
(District Munsif), Saharanpur under the U.P. (Temporary Control of Rent and Eviction) Act,
1947. Pending proceedings this Act was repealed and U.P. (Urban Building Regulation of
Letting Rent and Eviction) Act, 1972, for short 'the Act' came into force w.e.f. July 15, 1972.
Section 39 permitted the appellant to deposit the arrears, interest accrued thereon and full costs
of the suit within one month from the date of the commencement of the Act. As on date a sum of
Rs. 2, 048/- was due. Due to error in calculation a sum of Rs. 1, 944/- was deposited within one
month, leaving a deficit of Rs. 104/-. The Trial Court decreed ejectment, but on revision, the
Dist. Judge held that the appellant had substantially complied with Section 39. A sum of Rs.
104/- was not deposited due to bonafide mistake of calculation. Though alternative remedy was
available, Ram Lal instead filed a writ petition in the High Court under Article 227 in Civil
Misc. Suit Petition No. 9296/79. When the matter came up before the learned Single Judge, the
respondent restricted his case to three ; contentions, namely:

(1) When the tenant committed default in deposit of the full amount within one month as
enjoined under Section 39, whether the court has jurisdiction to go into the question of bona fide
mistake of calculation; or substantial compliance;

(2) whether the tenant should not be treated as a defaulter; and

(3) whether the finding of the courts below that the short fall in the deposit made by the tenant
was caused by a bona fide mistake of calculation is manifestly unsustainable.

The learned Single Judge answered the latter two questions against Ram Lal but not the first
question since there was a conflict of decisions, for its resolution referred the matter to the
division bench which by its order dated September 10, 1982 held that "if the deposit made by a
tenant falls short of the amount or amounts required to be deposited under Section 39, the tenant
would not be entitled to the principle of substantial compliance for the benefit of Section 39. "
The Court applying the principle of de minimis non curat lex held that "if the amount is found to
be small, which has no consequence, the court would be justified in ignoring the said mistake by
extending the de minimis rule to such a case. As to what is a case deserving the benefit of the
aforesaid rule is a question of fact to be decided in each case for which no rigid and exhaustive
law can be laid down.... In a case of de minimis, the Court ignores the short fall and extends the
benefit contemplated by Section 39 to the defaulting tenant. It will not grant any decree of the
amount short deposited. The defence of substantial compliance does not absolve the tenant of his
liability to pay the entire amount. It further held whether the mistake to calculate arrears could
have no consequence at all and same cannot be regarded as false or misleading in a material
respect and hence a tenant is required to prove his bona fide by bringing evidence of the reason,
e.g. clerical mistake in calculation etc. for getting the advantage of the rule of de minimis. On
the facts in this case, the division bench concluded that "we have noted that the total amount
which the tenant was required to deposit was Rs. 1, 944/- (Rs. 2,048/-) and there was a
deficiency of Rs. 104/-. The amount of Rs. 104/- was not a small sum which could qualify the
requirement of getting the benefit of rule of de minimis." On receipt of the finding on reference
the learned Single Judge by the impugned judgment dated November 11, 1982 allowed the writ
petition, set aside the order of the appellate authority and granted decree of eviction. The appeal
was by special leave.

2. Section 39 Confers right on the tenant to absolve his default and save his tenancy provided he
complied with the conditions prescribed therein, namely, deposit of arrears into the court should
be made within one month from the date of the commencement of the Act or from the date of his
knowledge of pendency of the suit whichever is later:

(1) the entire amount of rent and damages for use and occupation;

(2) with interest at 9 per cent annum; and

(3) the landlord's full cost of the suit.

On compliance thereof the court is enjoined not to grant decree for eviction except on any other
grounds mentioned in proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-section (2) of
Section 20. Thus Section 39 gives further opportunity to the defaulting tenant to tender into the
court of the aforesaid sum to save his tenancy within the time envisaged therein lest he would be
liable to ejectment. Therefore, the division bench has rightly pointed out that the theory of
substantial compliance is not a compliance of Section 39. But when there is a bona fide mistake
in calculation, the burden is on the tenant to establish by adduction of evidence bona fides in
committing mistake. On the Court's satisfying that the tenant committed bona fide mistake in
computation of the three components referred to earlier or anyone and there is a default in
compliance thereof, if the amount in deficit is small, court would ignore the said mistake
applying de minimis principle and refuse decree for eviction. Therefore, the tenant has to act in
good faith. The mistake in calculation must be due to the above bona fide mistake. It is settled
law that the courts of justice generally do not take trifling and immaterial matters into account
except under peculiar circumstances. The strictness or harshness or inflexibility would lead to
injustice or miscarriage of justice. Therefore, in working out equities, the court would apply in
general the maxim "de minimis non curat lex". The division bench, therefore, rightly pointed out
that the doctrine deserves extension giving the benefit to the tenant, but it is a question of fact to
be decided in each case. Bona fide mistake may occur in myriad circumstances but it depends
upon each case. Neither rigid nor exhaustive nor inflexible rule could be laid cutting its
amplitude into mathematical formula, in which event also it would lead to miscarriage of justice
or injustice. Accordingly supreme court judges found that the division bench has rightly left the
question to the discretion of the Courts under the Act to consider in each case in the given facts
and circumstances whether non-compliance was bona fide and of the trifle, and then to grant
relief accordingly.

3. Though the learned Counsel for the appellant sought to contend that the case would require
consideration at the hands of this Court, judges found no justification to put the compliance of
Section 39 in a straight jacket formula. Each case has to be considered on its own facts and it is
for the courts below to consider and decide on the basis of factual matrix. In this case the High
Court found that a deficit of Rs. 104/- is not a trifle. In the facts and circumstances', it calls for
no interference by this Court. The appellant has been in possession of the demised premises for
commercial use as a shop. It is agreed by the parties across the bar that the appellant be given
two years time from today for use and occupation of the demised premises. The appellant was
directed to pay the market rent from October 1, 1993. The learned Dist. Munsiff was directed to
determine the prevailing market rent within a period of two months from the date of receipt of
this order. On such determination the appellant was asked to pay the same without taking any
further judicial remedy of an appeal, a revision or a writ petition under Article 226 of the
Constitution. He should pay the arrears within one month from the date of the determination of
the market rent to the respondent on receipt or in his refusal to deposit the amount to the credit
of the suit till he vacates the premises. The present rent shall be continued to be paid till the date
of determination of the market rent. Arrears, if any, as on date shall also be deposited within a
period of two months from today. If there is any default in payment of rent for two successive
months, it is open to the respondent to have the decree executed. The appellant shall file usual
undertaking in this Court within a period of six weeks from today. The appeal was disposed of
accordingly.

5. Legal Maxim discussed- Ignorantia Juris Non Excusat

Ashok Kumar Sharma v. State of Rajasthan 2007 CriLJ 1734, RLW 2007 (3) Raj 1914

The short question that has come up for consideration in this appeal was whether the empowered
officer, acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is
legally obliged to apprise the accused of his right to be searched before a Gazetted Officer or a
Magistrate and whether such a procedure is mandatory under the provisions of the Narcotic
Drugs and Psychotropic Substances Act.

PW1, Additional Superintendent of Police (Crimes), Jaipur City, Jaipur got secret information
that on 25.2.2001 one Ashok Kumar, the Appellant herein was selling smack to a person near
Nandipur under Bridge. After completing the formalities PW1 along with two independent
witnesses reached near Nandpuri under Bridge. At about 4.55 P.M. a person came on a scooter,
who was stopped by the police force and was questioned. Exhibit P-3, notice was given by PW1
under Section 50 of the Narcotic Drugs and Psychotropic Substances Act to the Appellant to get
himself searched either before a Magistrate or a Gazetted officer. The Appellant gave his
consent in writing on Ex. P-3 itself stating that he has full confidence in him and agreed for
search. Upon search two packets had been recovered from the right and left pockets of the pant
of the Appellant. The contra-banned was weighed by PW7, goldsmith and the total weight of the
packets was 344 gms. From each packet two samples of 10 gms. were taken and sealed and
remaining packets were sealed separately. The Appellant was then arrested and the scooter was
seized.

PW1 gave a written report to the Station House Officer, Malviya Nagar Police Station, Jaipur to
register FIR No. 112/2001 under Section 8 and 21 of the Narcotic Drugs and Psychotropic
Substances Act. Ex-P-19, report of the Public Analyst of the Rajasthan State Forensic
Laboratory, Jaipur showed that the samples contained the presence of diacetylmorphine
(Heroin). On completion of the investigation, challan was filed against the accused. Learned
Special Judge, NDPS framed the charge under Sections 8 and 21 of the Narcotic Drugs and
Psychotropic

Substances Act. Before the Special Judge, prosecution examined 14 witnesses and produced Ex.
P1 to P19. The accused-Appellant in his statement under Section 313 of the Code of Criminal
Procedure stated that false case had been foisted against him.

The Sessions Court after having found guilty, convicted the Appellant and sentenced him to
undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh and, in default, to
further undergo simple imprisonment for one year. The Appellant preferred Criminal Appeal
No. 1157 of 2003 before the High Court under Section 374 of the Code of Criminal Procedure.
The appeal was, however, rejected by the High Court on 9.2.2007 against which this appeal has
been preferred by way of special leave.

Ms. C.K. Sucharita, learned amicus curiae appearing for the Appellant-accused submitted that
the High Court has committed a grave error in not appreciating the fact that the conviction was
vitiated by the non-compliance of the procedure laid down in Section 50 of the Narcotic Drugs
and Psychotropic Substances Act. Learned Counsel took us to the evidence of PW1 and
submitted that PW1 had not disclosed the fact that the accused had a right to be searched before
a Gazetted Officer or a Magistrate, if so required by him. According to the Learned Counsel
non-compliance of that procedure vitiated the entire proceedings initiated against the Appellant.
In support of her contention reliance was placed on a judgment of this Court in Vijaysingh
Chandubha Jadeja v. State of Gujart MANU/SC/0913/2010 : (2011) 1 SCC 609.

Mr. Amit Lubhaya, Learned Counsel appearing for the State of Rajasthan, on the other hand,
contended that the Sessions Court has rightly convicted the Appellant and there has been a
substantial compliance of the procedure laid down under Section 50 of the - Narcotic Drugs and
Psychotropic Substances Act. Learned Counsel further submitted that the High Court in a well
considered order has affirmed the conviction as well as the sentence imposed by the Special
Judge.

Judges observed that they are in this case concerned only with the question whether PW1, the
officer who had conducted the search on the person of the Appellant had followed the procedure
laid down under Section 50 of the Narcotic Drugs and Psychotropic Substances Act. On this
question, there were conflicts of views by different Benches of this Court and the matter was
referred to a five Judge Bench. Suprem Court in Vijaysingh Chandubha Jadeja (supra) answered
the question, stating that it is imperative on the part of the officer to apprise the person intended
to be searched of his right under Section 50 of the Narcotic Drugs and Psychotropic Substances
Act, to be searched before a Gazetted Officer or a Magistrate. The Supreme Court also held that
it is mandatory on the part of the authorized officer to make the accused aware of the existence
of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and
this mandatory provision requires strict compliance. The suspect may or may not choose to
exercise the right provided to him under the said provision, but so far as the officer concerned,
an obligation is cast on him under Section 50 of the Narcotic Drugs and Psychotropic Substances
Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate.
The question, as to whether this procedure has been complied with or not, in this case the
deposition of PW1 assumes importance.

PW1 would clearly indicate that he had only informed the accused that he could be searched
before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has
a right under Section 50 of the Narcotic Drugs and Psychotropic Substances Act to be searched
before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that
there is an obligation on the part of the empowered officer to inform the accused or the suspect
of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so
required by him. Only if the suspect does not choose to exercise the right in spite of apprising
him of his right, the empowered officer could conduct the search on the body of the person.

9. Judges also examined the general maxim "ignorantia juris non excusat" and whether in such a
situation the accused could take a defence that he was unaware of the procedure laid down in
Section 50 of the Narcotic Drugs and Psychotropic Substances Act. Ignorance does not normally
afford any defence under the criminal law, since a person is presumed to know the law.
Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true,
that knowledge of law must be imputed to every person. But it must be too much to impute

knowledge in certain situations, for example, it cannot be expected that a rustic villager, totally
illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e.
leave aside the Narcotic Drugs and Psychotropic Substances Act. We notice this fact is also
within the knowledge of the legislature, possibly for that reason the legislature in its wisdom
imposed an obligation on the authorized officer acting under Section 50 of the Narcotic Drugs
and Psychotropic Substances Act to inform the suspect of his right under Section 50 to be
searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of
that procedure.

Judges were of the view that non-compliance of this mandatory procedure has vitiated the entire
proceedings initiated against the accused-Appellant. Judges were of the view that the Special
Court as well as the High Court has committed an error in not properly appreciating the scope of
Section 50 of the Narcotic Drugs and Psychotropic Substances Act. The appeal was, therefore,
allowed. Consequently the conviction and sentence imposed by the Sessions Court and affirmed
by the High Court were set aside. The accused-Appellant, who was in jail, was directed to be
released forthwith, if not required in connection with any other case.

6. Legal Maxim discussed- Obiter dicta

Periyar and Pareekanni Rubbers Ltd. vs. State of Kerala 2015 (113) ALR 271, 2016 (10)
SCJ 292

Facts

Portions of rubber estate of the Appellant were acquired by the Respondent under Section 4(1) of
the Act, 1894 for the Periyar Valley Irrigation Project. In 1980 and 1981 Awards were passed by
the Land Acquisition Officer awarding compensation, on the market value of land which were
partly based on capitalisation method of the yielding rubber trees for the planted area and partly
on the value of bare land on which there were no yielding rubber plantation. Awards included
solatium and interest on compensation including solatium. Appellants filed an appeal against the
awards and the Reference Court, after perusal of the record, passed an award on 19.11.1992 by
enhancing the compensation partly based on capitalisation method of the yielding rubber trees
for the planted area and based on the value of bare land on which there were no rubber trees. The
Reference Court held the Appellants to be entitled to 30% solatium, 12% additional market value
from the date of the notification, 10.10.1978, till the date of award passed against it; they would
be entitled to nine per cent interest for the first one year from the date of dispossession and
thereafter at 15 per cent till realisation of the compensation awarded.

Subsequently, after some persons were compensation, the Appellants petitioned the Execution
Court, which passed an order on 15.10.2008 fixing balance amount payable by the Respondent
after excluding solatium on that portion of the market value of the acquired land based on
capitalisation method of the yielding rubber trees for the planted area. On appeal by the
Appellants, the High Court on 07.04.2010 ordered confirming that the solatium was payable by
Respondent for the enhanced compensation awarded for the market value of the entire land.
Thus, it provided solatium for that portion of land the value of which was based on the
capitalisation method of yielding rubber trees and directed the Respondents to compute balance
amount payable under the decree. However, the High Court awarded the interest on solatium
from 19.09.2001, the date of judgment delivered in Sunder v. Union of India (Sunder) instead of
from the date of acquisition of the land of the Appellant. The solatium being the component of
compensation payable to the Appellant, the High Court placed restriction upon its payment
relying on the judgment subsequent to Sunder in Gurpreet Singh v. Union of India (Gurpreet).
Hence, the present appeal was filed.

JUDGEMENT

1. V. Gopala Gowda J. held that, Section 34 of the Act, 1894 provides payment of interest on
"amount of such compensation". Section 34 must be read along with Section 31 of the Act, 1894.
Section 31 of the Act, 1894 provides for the payment of compensation or deposit of the same in
Court. Further, Section 28 of the Act, 1894 provides for the direction which may be made to the
Collector to pay the interest on excess compensation. Thus, it is clear from that the award
includes not only the sum as is determined under Section 23(1) of the Act, 1894 but also the
amounts payable under Section 23(1A) and Section 23(2) of the Act, 1894. The Court in Sunder
held: "The proviso to Section 34 of the Act makes the position further clear. The proviso says
that "if such compensation" is not paid within one year from the date of taking possession of the
land, interest shall stand escalated to 15% per annum from the date of expiry of the said period of
one year "on the amount of compensation or part thereof which has not been paid or deposited
before the date of such expiry". It is inconceivable that the solatium amount would attract only
the escalated rate of interest from the expiry of one year and that there would be no interest on
solatium during the preceding period. What the legislature intended was to make the aggregate
amount Under Section 23 of the Act to reach the hands of the person as and when the award is
passed, at any rate as soon as he is deprived of the possession of his land. Any delay in making
payment of the said sum should enable the party to have interest on the said sum until he receives
the payment. Splitting up the compensation into different components for the purpose of
payment of interest Under Section 34 was not in the contemplation of the legislature when that
section was framed or enacted." Based on the above, the judgment rendered in Sunder is the
binding precedent on the question of payment of legislative statutory interest payable on
solatium under Sections 23(1A), 28 and 34 of the Act, 1894, which cannot be deprived to the
claimant by the court. The High Court was right in holding that the claimant is entitled for the
interest not only in respect of the land but also with respect to the trees standing on the land of
which the market value is determined by the Reference Court.[23],[24],[25] and[26]

2. The interest on solatium can be awarded at execution stage if the Reference Court or the
Appellate Court does not specifically refer to the question of interest on solatium or cases
wherein claim had not been made and rejected either expressly or impliedly by the Reference
Court or the Appellate Court and merely interest on compensation is awarded. But where the
Reference Court or appellate court has negatived the same either expressly or by implication then
such interest on solatium cannot be awarded as the Execution court cannot go behind the decree.
Further, interest on solatium can be claimed only in pending execution cases and not in closed
execution cases, recoverable from the date of the judgment in Sunder, that is 19.09.2001, and not
for any period prior. Finally, it will not entail any appropriation or reappropriation by the
claimant/decree holder. In the instant case, this was not the question which was referred to the
Court for consideration; therefore, it is merely an observation of the court which cannot be
applied as binding precedent in the instant case with regard to the entitlement of statutory interest
payable under Sections 23(1A), 28 and 34 of the Act, 1894 on the solatium.[28]

3. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India,
the court made distinction between the ratio and obiter dicta of a case: "It is difficult to regard a
word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as
containing a full exposition of the law on a question when the question did not fall to be
answered in that judgment." In Director of Settlement v. M.R. Apparao, the Court elaborated
upon the principle of binding precedent: "Article 141 of the Constitution unequivocally indicates
that the law declared by the Supreme Court shall be binding on all courts within the territory of
India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an
essential function of the Court to interpret a legislation. The statements of the Court on matters
other than law like facts may have no binding force as the facts of two cases may not be similar.
But what is binding is the ratio of the decision and not any finding of facts. It is the principle
 found out upon a reading of a judgment as a whole, in the light of the questions before the Court
that forms the ratio and not any particular word or sentence. To determine whether a decision has
"declared law" it cannot be said to be a law when a point is disposed of on concession and what
is binding is the principle underlying a decision. A judgment of the Court has to be read in the
context of questions which arose for consideration in the case in which the judgment was
delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the
Court on a legal question suggested in a case before it but not arising in such manner as to
require a decision." Thus, it is established that the extension of ratio of a decision to cases
involving identical situations, factual or legal, should not be mechanically applied to the facts of
a case. The decision in Sunder is the binding precedent. In Gurpreet, the Court made some
observations with regard to the payment of interest on solatium, which were only obiter but not
the binding precedent as that question did not fall for consideration before it.[28],[29] and[30]

4. A.K. Goel J. dissented. The Court in Chimanlal Kuberdas Modi v. Gujarat Industrial
Development Corpn. lay down the following: "It is no doubt true that the execution court cannot
examine the reasons so as to go behind the decree but if in the award passed, the Reference Court
makes a specific reference to payment of interest but without any such reference to the payment
of interest on solatium and merely payment of interest on compensation is granted, then it would
be open to the executing court to apply the ratio of Sunder and declare that the compensation
awarded includes solatium, and consequently, interest on the amount could be directed to be
deposited in execution. That being the legal position as prevailing today, we cannot ignore the
observations made in para 54 of the aforesaid judgment in Gurpreet Singh and we order
accordingly that compensation awarded includes solatium and therefore interest on the said
amount shall be paid by the Respondent in the pending execution." Based on the above and
similar judgments, the Appellant couldn’t succeed.

It was thus considered appropriate that the matter should be placed before a larger Bench.

7. Pendente lite
Union of India (UOI) vs. Ambica Construction AIR2016SC1441,  2016 (3) SCJ 370, (2016)
6 SCC 36

Facts:

The issue involved in the reference is in regard to the power of the Arbitrator to award pendente
lite interest when contract contains bar for grant of interest in a case covered by the Arbitration
Act, 1940 (the Act). A Division Bench of this Court had doubted the correctness of the decisions
in Board of Trustees for the Port of Calcutta v. Engineers-De-Space-Age; and Madnani
Construction Corporation (P) Ltd. v. Union of India and Ors. Hence, the matter had been referred
to a larger bench for decision.

The tender of M/s. Ambica Construction for fabrication of tie bars from M.S. Flats in CST-9
sleepers was accepted in 1989. Final agreement was executed and the work was completed in
1990. With respect to payments, certain differences and disputes arose between the parties. Thus
M/s. Ambica Construction prayed for appointment of an Arbitrator. In 1991, as the Petitioner
M/s. Ambica Construction was in serious financial difficulties, it accepted the amount in full and
final settlement. Later on, the Union of India informed the Petitioner that the matter was under
consideration. However the Arbitrator was not appointed. An application Under Section 20 of
the Act was filed before the High Court of Calcutta for referring the case to arbitration. In 1992,
the High Court directed to file the arbitration agreement in the court and appointed two
Arbitrators in terms of the arbitration clause.

Said Arbitrators failed to publish the award and as such an application was filed for revocation of
the authority of joint Arbitrators and another sole Arbitrator was appointed. The sole Arbitrator
ultimately published the award in 1997. On an application filed by the Union of India, the High
Court remitted the award to the Arbitrator to give an item-wise break-up. The sole Arbitrator
published the item-wise award. Again the Union of India questioned the same before the High
Court. The award was set aside on the ground that the Arbitrator had not given an intelligible
award in terms of Clause 64(3)(a) (iii) of the agreement and had not taken into effect the
supplementary agreement dated 5.3.1991. The appeal preferred by the Petitioner was dismissed
by the Division Bench of the High Court against which an SLP was filed in which leave was
granted and ultimately C.A. was allowed and case was remitted to the Arbitrator for assigning
reasons and to pass fresh award. Thereafter, Arbitrator passed a fresh award on 11.2.2006.

Again an application was filed by the Union of India Under Sections 30 and 33 of the Act. The
Single Judge dismissed the application. Union of India filed an application for recall. The order
of the Single Judge was recalled. The learned Single Judge set aside the award with regard to
interest for pre-reference period and directed that interest would be allowed on the principal sum
of Rs. 9,82,660/- at the rate of 10% per annum from 1.9.1992 the date from which the original
Arbitrator entered upon the reference. An appeal was preferred before the Division Bench and
the same had been partly allowed with regard to claim Nos. 6 and 7. Aggrieved thereby, M/s.
Ambica Construction had preferred S.L.P. in this Court and Union of India has also assailed the
judgment and order of the High Court in S.L.P.

Held

1. There are certain provisions which are statutorily implied in arbitration agreement unless
excluded in the agreement. Section 3 of the Act of 1940 deals with the provisions which are
implied in the arbitration agreement. The provisions of Section 3 make it clear that unless a
different intention is expressed in the arbitration agreement, the agreement would include the
provisions contained in the First Schedule so far as they are applicable to the reference.

2."Court" has been defined in Section 2(c) of the Act to mean a civil court having jurisdiction to
decide the questions forming the subject-matter of the reference. The court can exercise the
power specified in Second Schedule of the Act. However, Arbitrator is not a court. Arbitrator is
the outcome of agreement. He decides the disputes as per the agreement entered into between the
parties. Arbitration is an alternative forum for resolution of disputes but an Arbitrator ipso facto
does not enjoy or possess all the powers conferred on the courts of law.
3.In Court's opinion, it would depend upon the nature of the ouster clause in each case. In case
there is express stipulation which debars pendente lite interest, obviously, it cannot be granted by
Arbitrator. The award of pendente lite interest inter alia must depend upon the overall intention
of the agreement and what is expressly excluded.

4.Section 31(7)(a) of the 1996 Act confers power on Arbitrator to award interest pendente lite,
"unless otherwise agreed by parties". Thus, it is clear from the provisions contained in Section
31(7)(a) that the contract between the parties has been given importance and is binding on the
Arbitrator. Arbitration clause is also required to be looked into while deciding the power of the
Arbitrator and in case there is any bar contained in the contract on award of interest, it operates
on which items and in the arbitration clause what are the powers conferred on Arbitrator and
whether bar on award of interest has been confined to certain period or it relates to pendency of
proceedings before Arbitrator.

5.It is apparent from various decisions referred to above that in Secretary, Irrigation Department,
Government of Orissa and Ors. v. G.C. Roy, Constitution Bench of this Court has laid down
where agreement expressly provides that no interest pendente lite shall be payable on amount
due. The arbitrator has no power to award interest. In Executive Engineer, Dhenkanal Minor
Irrigation Division, Orissa and Ors. v. N.C. Budharaj (D) by L.Rs. and Ors. a Constitution Bench
has observed that in case there is nothing in the arbitration agreement to exclude jurisdiction of
arbitrator to entertaining claim for interest, the jurisdiction of arbitrator to consider and award
interest in respect to all periods is subject to Section 29 of the Act. In Hindustan Construction
Co. Ltd. v. State of Jammu and Kashmir this Court has followed decision in Secretary, Irrigation
Department, Government of Orissa and Ors. v. G.C. Roy and laid down that on the basis of
principles of Section 34 arbitrator would have the power to award pendente lite interest also. In
State of Orissa v. B.N. Agarwalla, this Court has again followed Secretary, Irrigation
Department, Government of Orissa and Ors. v. G.C. Roy and Hindustan Construction Co. Ltd. v.
State of Jammu and Kashmir with respect to power of arbitrator to award pendente lite interest
and it was held that arbitrator has power to award interest.
6. In State of U.P. v. Harish Chandra and Co. this Court interpreted the Clause 1.9 which
provided that no claim for interest or damages will be entertained by the Government in respect
to any moneys or balances which may be lying with the Government. It was held that there was
no provision which could be culled out against the contractor not to claim interest by way of
damages before the arbitrator on the relevant items placed for adjudication. In State of Rajasthan
and Anr. v. Ferro Concrete Construction (P) Ltd. this Court considered Clause 4 containing a
stipulation that no interest was payable on amount withheld under the agreement. It was held that
Clause 4 dealt with rates, material and workmanship did not bar award of interest by the
arbitrator on claims of the contractor made in the said case.

7. In Sayeed Ahmed and Co. v. State of U.P. and Ors. this Court has emphasized that award of
interest would depend upon nature of the clause in the agreement. In Union of India v. Bright
Power Projects (India) Pvt. Ltd. this Court has considered the expression "unless otherwise
agreed by parties" employed in Section 31(7)(a) of the Act of 1996 and laid down that in case
contract bars claim of interest contractor could not have claimed interest. The provision of
Section 31(7)(a) of the Act of 1996 is binding upon the arbitrator. In Sree Kamatchi Amman
Constructions (supra) similar view has been taken.

8. In Sayeed Ahmed and Co. v. State of U.P. and Ors. the decision in Board of Trustees for the
Port of Calcutta v. Engineers-De-Space-Age has been considered and it was observed that it
cannot be used to support an outlandish argument that bar on the Government or department
paying interest is not a bar on the Arbitrator awarding interest. This Court expressed doubt as to
the correctness of certain observations made in Board of Trustees for the Port of Calcutta v.
Engineers-De-Space-Age to the extent that the Arbitrator could award interest pendente lite
ignoring the express bar in the contract. But this Court did not consider the question further as
the case in Sayeed Ahmed and Co. v. State of U.P. and Ors. arose under the Arbitration and
Conciliation Act of 1996, and there was a specific provision under new Act regarding award of
interest by the Arbitrator. From the discussion made in Sayeed Ahmed (supra) it is apparent that
this Court has emphasized that it would depend upon the nature of clause and claim etc. and it is
required to be found on consideration of stipulation whether interest is barred, if yes, on what
amounts interest is barred under the contract.

9.A three-Judge Bench of the Supreme Court in Tehri Hydro Development Corporation Limited
and Anr. v. Jai Prakash Associates Limited, has considered the question which has been referred
in the instant case and it has been laid down in the context of clauses 1.2.14 and 1.2.15 imposed
a clear bar on either entertainment or payment of interest in any situation of non-payment or
delayed payment of either the amounts due for work done or lying in security deposit. Thus, the
arbitrator had no power to grant pendente lite interest. The Supreme Court has also doubted the
correctness of the decisions in Board of Trustees for the Port of Calcutta v. Engineers-De-Space-
Age and Madnani Construction Corporation (P) Ltd. v. Union of India and Ors..[22]

10.In para 4 in Board of Trustees for the Port of Calcutta v. Engineers-De-Space-Age the Court
has observed that bar under the contract will not be applicable to Arbitrator cannot be said to be
observation of general application. In Court's opinion, it would depend upon the stipulation in
the contract in each case whether power of Arbitrator to grant pendente lite interest is expressly
taken away. If answer is 'yes' then Arbitrator would have no power to award pendente lite
interest.[22]

11.The decision in Madnani Construction Corporation (P) Ltd. v. Union of India and Ors. has
followed decision in Board of Trustees for the Port of Calcutta v. Engineers-De-Space-Age.
Same is also required to be diluted to the extent that express stipulation under contract may debar
the Arbitrator from awarding interest pendente lite. Grant of pendente lite interest may depend
upon several factors such as phraseology used in the agreement, clauses conferring power
relating to arbitration, nature of claim and dispute referred to Arbitrator and on what items power
to award interest has been taken away and for which period.[23]
12.Thus, the Court's answer to the reference was that if contract expressly bars award of interest
pendente lite, the same cannot be awarded by the Arbitrator. The Court also made it clear that the
bar to award interest on delayed payment by itself will not be readily inferred as express bar to
award interest pendente lite by the Arbitral Tribunal, as ouster of power of Arbitrator has to be
considered on various relevant aspects referred to in the decisions of this Court, it would be for
the Division Bench to consider the case on merits.

8. Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others1

Legal maxim used: Res Ipsa Loquitur: Things speak for itself

Case Summary:

The wife of appellant was admitted in the Civil Hospital, Aurangabad for delivery of a child.
This hospital is attached to the Govt. Medical College. The respondent no. 2 was working in the
department of Obstetrics and Gynecology as a doctor and it was she who attended the victim.
After the delivery the victim had got herself admitted to this hospital with a view to undergo a
sterilisation operation. The said operation was performed by respondent No. 2. Soon thereafter
the victim has developed high fever and also had acute pain which was abnormal after such a
operation. Later her condition deteriorated further and approached one Dr. Divan, (PW-2), who
was a well-known surgeon and was attached to the hospital, but was not directly connected with
the Gynecological department. After examining her, he (PW-2) is alleged to have suggested that
the sterilisation operation which had been performed should be re-opened. This suggestion was
not acted upon by respondent Nos. 2 and the condition of the victim has become very serious.
Then Dr. Divan (PW-2), on being called once again, re-opened the wound of the earlier
operation in order to ascertain the true cause of the seriousness of the ailment and to find out the
cause of the worsening condition of the victim. He, as a result of the second operation, found that
a mop (towel) had been left inside the body of the Victim when sterilisation operation was
1
(AIR)1996SC2377
performed on her. . Thereafter, the abdomen was closed and the second operation completed.
Even, thereafter the condition of the victim did not improve and ultimately she died.

The petitioners pleaded that the death of victim was caused due to the negligence of respondent
No. 2 who had performed the sterilisation operation. The petitioners also alleged that the
hospital lacked adequate medical aid and proper care and there was gross dereliction of duty on
the part of the officers of the Government Civil Hospital which directly resulted in the death of
the victim and, therefore, the appellants were entitled to recover damages from the Government
of Maharashtra (respondent No. 1) as well as the other respondents. So the respondents, claimed
total damages of Rs. 1,75,000.

The respondents filed a common written statement contending that the appellants' suit was false.
It was denied that there was any negligence in the performance of the sterilisation operation.
According to the respondents the condition of victim had improved after the operation.
Respondent No. 2 denied having left any mop in the abdomen of the victim and, in the
alternative, pleaded, that even if such a mop was left inside the body, the same could not have,
either directly or remotely, caused the death.

According to Dr. Divan, after the sterilisation operation the victim had suffered from post
operative peritonitis. This was due to a mop (towel) which had remained inside the peritoneal
cavity for a number of days and inflammatory condition had reached a stage from which
recovery was very difficult and in his opinion the death of the patient was due to the
complications following the leaving of the mop inside the abdomen. The other expert witness Dr.
Ajmkya also came to the same conclusion as Dr. Divan.

On behalf of the respondents, apart from themselves, two experts, namely Dr. Marwa, Professor
of Surgery, Medical College, Aurangabad and Dr. B.V. Purandare, a leading Obstetrician and
Gynaecologist of Bombay were examined. The trial court did not rely upon the evidence of the
experts examined by the respondents because it came to the conclusion that the original
documents and case papers had been filed late, some relevant entries had also been tampered
with and it was only the typed papers, which were copies of the tampered documents, which
were supplied to the respondents' expert witnesses for their opinion.
The trial court decided the issues, after considering the evidence and facts, in favour of the
appellants and passed a decree for Rs. 36,000 against respondents.

The respondents filed an appeal to the High Court. The High Court discussed all the evidence
and firstly came to the conclusion that, in law, the Government could not be held liable for
tortious act committed in a hospital maintained by it. Thereafter, it held that though there was no
justification for the delay in the authorities' concerned in supplying the case papers to the
appellants, no prejudice had been caused. The High Court did observe that there were some
erasure marks and rubbing off of the entries in the original case papers, but held that it was not
possible to infer there from that the registers had been tampered with and that there was no
material before the trial court to hold that the case papers were tampered with by respondents 2.
The High Court also noticed that the opinion of the experts was conflicting. According to Dr.
Purandare, (the defenders expert), the victim was only suffering from acute gastric disorder till
19th July, and it was necessary for the doctors to have waited after removal of the pus on that
day and the second operation was possibly not necessary. Then the HC held that, the appellants
had failed to prove that the negligence of leaving the mop inside the abdomen had caused the
death of the victim. It, therefore, concluded that none of the respondents could be held liable for
negligence. It, accordingly, allowed the appeals and dismissed the suit.

Then the petitioners approached the Supreme Court to strike down the High Court order and
award damages worth Rs 1,75,000. The petitioners failed to prove the negligence of the doctors
and hence the doctrine of Res Ipsa Loquitur was applied to hold the defendants liable as the court
felt that it was a negligent act of the defendants in leaving the towel which caused the death and
that this act was well within the control of the defendants. Though it is common that certain
foreign bodies are generally left behind in a patient’s body during an operation, intentionally or
unintentionally and that the body generally fights the foreign bodies it was observed that leaving
a mop was an extremely negligent act. Then, order of the High Court was set aside and decree of
the trial court is restored. The appellants will also be entitled to costs throughout.

9. Legal Maxim : de minimus - law does not take care for, or take notice of, small or
trifling matters
Indian Banks' Association, Bombay and Ors. vs. Devkala Consultancy Service and Ors.
(16.04.2004 - SC) : MANU/SC/0355/2004

In this case the question of law was whether Bankers had the authority in terms of Section 26 C
of the Interest Tax Act to round up existing tax rates to 0.25% and the other question was
whether the reserve bank of India had the authority to approve such roundup. One of the
arguments raised by the defendant is that since the increase in rate of interest being not so
significant the doctrine of de minimus should be applied. The court held that It is not a matter
which would not receive the attention of anybody. Not only a public interest litigation was filed
but also the association of borrowers of Karnataka has also filed a special leave petition. The
amount collected from the borrowers may be negligible for the appellant banks but the amount
they have realised from five crores of borrowers is not a small one. By reason of a self-created
confusion, misconception as regard application of a statute and misapplication and
misconstruction thereof by the appellants herein had resulted in an illegal action ; as a result
whereof the borrowers have been deprived of a huge amount. Consequently, the Union of India
and the appellants have unjustly enriched themselves. When such an unjust enrichment takes
place, the doctrine of de minimis should not be applied in equity or otherwise.

10. Rajkot Municipal Corporation v. Manjulaben Jayantilal Nakum and Ors2.

Legal Maxim: Vis Major (Act of God)

Case summary:

The deceased was going to his office. He was to cover an area known as Kothi Compound.
While he was walking in the Kothi Compound, a tree suddenly fell upon him and killed him.
According to the plaintiffs, all the trees in the city of Rajkot are deemed to be of the ownership
and under the maintenance and management of the defendant Municipal Corporation and that the
Corporation was obliged to maintain the trees and look after them properly. It is also the case of
the plaintiffs that the defendant Corporation was careless and negligent in looking after the
proper maintenance of the trees, including the tree which had fallen upon the deceased. It is also

2
1992ACJ792
the case put forth by the plaintiffs very clearly that the tree which had fallen down upon the
deceased and had killed him was not a sound tree but was a decayed one. It is, therefore, the case
of the plaintiffs that the tree had suddenly fallen on the deceased during a fine weather. The case
of the applicant therefore is that the defendant Municipal Corporation had failed in discharge of
the duty of maintenance of the tree in a proper fashion, resulting into the incident.

The defendant Corporation had challenged the case of the plaintiffs. They contended that the suit
is not maintainable and that the defendant Corporation would not be liable for paying the
damages as claimed by the plaintiffs. The defendant has denied the case of the plaintiffs that the
unfortunate incident had taken place during the fine weather and has further contended that there
was a heavy cyclone throughout the region and that several trees at various places had fallen
down and the house property at various places was damaged and the roofs were blown off. Thus
according to the defendant Corporation the reason of the fall of the tree was vis major, i.e., the
act of God, for which the defendant Corporation cannot be made liable.

The defendants further urged that, in tort of negligence the defendant Corporation could never
have been held liable for a breach of duty because the plaintiffs were required to establish that
there was a duty cast upon the defendant Corporation and that the defendant Corporation had not
taken the necessary care to find out as to whether there was any danger or risk to a pedestrian by
the tree but in this case the damage which had ultimately resulted or the risk which has been
ultimately suffered was foreseeable and that the same could have been foreseen by adopting a
reasonable standard of care.

In this case the court makes the following observations;

When there is no duty to exercise then the negligence has no legal consequence. It is also true
that wherever there is a duty to exercise, reasonable care must be taken to avoid risk or damage
which could have been reasonably foreseen. Duty of care is owed only to those persons who are
in the area of a foreseeable danger.

The court made clear that the defendants would ordinarily not be made liable unless there was a
reasonable foreseeability. According to court, this case-law would also go to show that the
defendant would be liable if the plaintiffs were able to establish reasonable foreseeability. The
absence of foreseeability would be a good defense on the part of the defendant in such cases. The
court laid stress on this principle of reasonable foreseeability because at this juncture because
they feel that the very question would crop up at a later juncture, with a view to ascertain as to
whether the defendant Corporation can be said to be negligent in discharge of its duties cast upon
it by the relevant statute.

The case of the plaintiffs is that tree had acquired some disease or decayance. The above said
case has been denied by the defendant Corporation and it has further contended that the tree had
fallen down because of a heavy cyclone which had affected the entire region of Saurashtra. But it
requires to be pertinently appreciated that this case taken up by the defendant Corporation in the
pleadings was given a clear go-by. No evidence whatsoever was adduced by the defendant
Corporation to prove or even rather to suggest that the city of Rajkot and other parts of the region
of Saurashtra were affected by a cyclone on that particular day. No such suggestion was also
made to the plaintiffs and their witnesses. The defendant witness also had not stated a word in
respect of cyclone. It is, therefore, clear that the case which was pleaded in the pleadings was
given a clear go-by and, therefore, the question which had remained for the consideration of the
trial court was as to whether the tree had fallen down because of the negligence and carelessness
on the part of the defendant Municipal Corporation.