List of Current Affairs

Source: Supreme Court

Why in News?

A bench of Justices Hima Kohli and Rajesh Bindal observed that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.

• The Supreme Court (SC) gave the observation in the matter of Prakash (Dead) By LR. v. G. Aradhya & Ors.

Background

• Two documents regarding conveyance of property through sale deed and reconveyance of same property through buy back deed were executed on the same day.
  • Both deeds were executed on the same day but as different documents.
• The vendee to whom the property was conveyed agreed to re-transfer the property back within five years of the Sale Deed in case the sale consideration of ₹5000/- (Rupees Five Thousand) is paid.
• The vendor (father of appellant) of the property sent notice to the vendee for reconveyance of property.
  • The vendee responded that it was not a mortgage by conditional sale. It was an outright sale of the property.
• The Appellant then filed a suit for redemption of mortgage which was refused by the Trial Court.
  • The order of Trial Court was upheld by the High Court.
• Subsequently, this appeal was filed before the Supreme Court.

Court’s Observation

• The SC observed that Proviso to Section 58(c) of the Transfer of Property Act, 1882 (TPA) states if the condition for re-transfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage.

Mortgage

• Mortgage is defined under Section 58 of the TPA.
  • According to the Section, it is the transfer of an interest in specific immoveable property.
• The transfer is made for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability.
• The transferor is called a mortgagor, & the transferee a mortgagee.
• The principal money and interest of which payment is secured for the time being are called the mortgage-money.
• And the instrument (if any) by which the transfer is effected is called a mortgage-deed.

Types of Mortgages

• Simple Mortgage:
  • In a simple mortgage, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, and mortgagee has the right to sell the property if he fails to pay the amount.
• Mortgage by Conditional Sale:
  • In this type of mortgage, the mortgagor ostensibly sells the mortgaged property based on certain conditions.
• Usufructuary Mortgage:
  • The mortgagor delivers the possession to mortgagee and authorises him to retain such possession until payment of the mortgage-money is made, and to receive the rents and profits accruing from the property.
• English Mortgage:
  • In English Mortgage, the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed.
• Mortgage by Deposit of Title-deeds:
  • Where a person in any of the following towns, namely, Calcutta, Madras and Bombay delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
• Anomalous Mortgage:
  • A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds is called an anomalous mortgage.

Mortage by Conditional Sale

• According to Sub-section (c) of the Section 58 of TPA, the mortgagor ostensibly sells the mortgaged property —
  • on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or
  • on condition that on such payment being made the sale shall become void,
  • Or, on condition that if such payment is made the buyer shall transfer the property to the seller.
• The proviso of the section states that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.

Source: Karnataka High Court

Why in News?

Recently, the High Court (HC) of Karnataka in the case of M J Mathew & Others v. Prestige St. Johns Wood Apartment Owners Association & Anr., held that private association of owners of apartments does not qualify to be a State under Article 12 of the Constitution of India (COI).

Background

• The petitioners claim to be the owners of certain apartments in respect of which an Apartment Owners' Association is constituted as respondents.
• The petitioners filed a writ petition before the Karnataka HC, questioning the amendment of bye laws of the Apartment Owners' Association which paved way for levy of Facilitation Charge from owners who had let out their apartments on lease, licence, tenancy or otherwise.
• The petition was dismissed by the Court.

Court’s Observations

• A single judge bench of Justice R Nataraj observed that respondents are private association of owners of apartments and therefore do not qualify to be a State under Article 12 of the COI.
• The Court further observed that it is also not performing any public duty and hence its activities are not amenable to be scrutinized by this Court in a proceeding for issuance of a prerogative writ.

Legal Provisions

Article 12, COI

• The fundamental rights are contained in Part III of the COI, which starts right from Article 12 to Article 35.
• Article 12 of the COI deals with the definition of State for the purpose of application of the provisions contained in Part III of COI.
• It is an imperative Article and lays down that in Part III of the Constitution,
  • Unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
• The definition of State is inclusive and provides that State includes the following:
  • The Government and Parliament of India, i.e., Executive and Legislature of the Union.
  • The Government and the Legislatures of each state, i.e., Executive and Legislatures of States.
  • All local or other authorities within the territory of India or under the control of the Government of India.
  • Other Authorities:
    • SC has given a broader interpretation to “other authorities” under Article 12, by the following judicial precedents.
    • In Ujjain Bai v. State of U.P (1961), the SC held that other authorities cannot be constricted to mean local authorities, and state and union governments.
    • In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975), the SC held that the Oil and Natural Gas Commission (ONGC), which is a government-owned corporation, is other authority under Article 12.
    • In Rajasthan Electricity Board v. Mohan Lal (1967), the SC held that the Rajasthan Electricity Board is other authority under Article 12.
    • In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002), the SC held that the Indian Institute of Chemical Biology is other authority under Article 12.
  • Justice P.N Bhagwati in the case of R.D Shetty v. Airport Authority of India (1979) had given a 5 Point test to determine whether a body is an agency or instrumentality of the State, and which goes as follows –
    • Financial resources of the State, where the State is the chief funding source i.e., the entire share capital is held by the government.
    • Deep and pervasive control of the State.
    • The functional character being Governmental in its essence, meaning thereby that its functions have public importance or are of a governmental character.
    • A department of Government transferred to a corporation.
    • Enjoys monopoly status which State conferred or is protected by it.
    • Article 12 of the Constitution does not specifically define judiciary and several dissenting opinions exist on the same matter.

Source: Hindustan Times

Why in News?

The Chief Justice of India (CJI) has stated that Supreme Court (SC) by virtue of its diversity is a people-centric court and not a polyvocal one while speaking at the Supreme Court Bar Association's (SCBA) felicitation function of the newly appointed SC Judges - Justice Ujjal Bhuyan and Justice SVN Bhatti.

Background

• CJI stated in the ceremony that the SC collegium consists of judges where a Judge from Maharashtra along with a Judge from West Bengal decide a matter relating to state of Haryana hence this is not the SC of Maharashtra or Delhi rather it is the SC of India and our aim here is to reflect that this court reflects the diversity of India.
• One of the major duties of the SC collegium in appointing judges is to ensure diversity and make a “people-centric court”.
• People-centered Legal and Justice services refers to an empirical understanding of legal needs and legal capabilities of those who require or seek assistance.
• CJI further stated that “People will start trusting the judiciary only when they see a reflection of themselves in the people who dispense justice.”
• CJI also raised one of the main concerns faced by Judges appointed to SC during the initial months of their tenure i.e., the accommodation in Delhi, as newly appointed Judges often have to stay at State Government Sadans (guest houses) for months.

Collegium System

• Constitution of India, 1950 under Articles 124(2) and 217 deal with the appointment of judges to the SC and High Courts (HC), respectively.
• Collegium System is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• The cases that propounded the collegium system are as follows:
• First Judges Case - S.P. Gupta v. Union of India (1981)
  • The ruling by the SC held that the word ‘consultation’ in Article 124 does not mean concurrence. Hence, the President was not bound to make a decision based on the consultation of the SC.
• Second Judges Case - Supreme Court Advocates-on-Record Association and another v. Union of India (1993)
  • SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
• Third Judges Case - In re Special Reference 1 of 1998
  • SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
  • The SC also laid down strict guidelines for the appointment of Judges of the SC and HC.
• Fourth Judges Case - SC Advocates-on-Record-Association and another v. Union of India (2015)
  • The Constitution’s (99th Amendment) created the National Judicial Appointment Commission Act, 2014 (NJAC) in which Article 124A was added to the Constitution of India, 1950. The Act’s functions and Parliament’s power to make laws were outlined in Articles 124B and 124C.
  • In the present case, the SC held that Article 124A does not provide adequate representation to the judicial component of the NJAC hence it was held violative of the independence of the judiciary which forms the essential structure of the Constitution. The court invalidated the NJAC and restored the earlier system.

Constitutional Provisions Related to Appointments of Judges

Article 124(2) - Establishment and constitution of Supreme Court - (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal *(on the recommendation of the National Judicial Appointments Commission referred to in article 124A) and shall hold office until he attains the age of sixty-five years.

Provided that —

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office in the manner provided in clause (4).

Article 217 - Appointment and conditions of the office of a Judge of a High Court.—(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal *(on the recommendation of the National Judicial Appointments Commission referred to in article 124A), and the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

Provided that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.

Explanation —For the purposes of this clause—

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.

*Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 2, for "after consultation with such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose" (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs. Union of India in its judgment dated 16-10-2015.

Supreme Court Judges

• The strength of SC Judges at present is 34 including the CJI.
• A person who is a citizen of India can be a Judge of SC till he attains the age of 65 years and has to possess following qualifications according to Article 124:
  • Has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
  • Has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
  • Is, in the opinion of the President, a distinguished jurist.
• Removal of a Judge of SC can take place as per the provisions of Article 124(4) of COI in following manner:
  • Article 124(4) - A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.