LAW FOR ALL

Thursday, March 4, 2021

The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In other words, the expression “shall be” preceding 27 per cent occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court. However, the impugned notifications/orders dated 27.7.2018 and 14.2.2020 and all other similar notifications issued by the State Election Commission during the pendency of these writ petitions mentioning that the elections to the concerned local bodies were being held subject to the outcome of these writ petitions, are quashed and set aside to the extent of providing reservation of seats in the concerned local bodies for OBCs. As a consequence, follow up steps taken on the basis of such notifications including the declaration of results of the candidates against the reserved OBC seats in the concerned local bodies, are declared non est in law; and the seats are deemed to have been vacated forthwith prospectively by the concerned candidate(s) in terms of this judgment. The State Election Commission shall take immediate steps to announce elections in respect of such vacated seats, of the concerned local bodies, not later than two weeks from today, to be filled by general/open category candidates for the remainder term of the Panchayat/Samitis. Ordered accordingly.

The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In other words, the expression “shall be” preceding 27 per cent occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court. However, the impugned notifications/orders dated 27.7.2018 and 14.2.2020 and all other similar notifications issued by the State Election Commission during the pendency of these writ petitions mentioning that the elections to the concerned local bodies were being held subject to the outcome of these writ petitions, are quashed and set aside to the extent of providing reservation of seats in the concerned local bodies for OBCs. As a consequence, follow up steps taken on the basis of such notifications including the declaration of results of the candidates against the reserved OBC seats in the concerned local bodies, are declared non est in law; and the seats are deemed to have been vacated forthwith prospectively by the concerned candidate(s) in terms of this judgment. The State Election Commission shall take immediate steps to announce elections in respect of such vacated seats, of the concerned local bodies, not later than two weeks from today, to be filled by general/open category candidates for the remainder term of the Panchayat/Samitis. Ordered accordingly.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 980 OF 2019

VIKAS KISHANRAO GAWALI …PETITIONER

VERSUS

STATE OF MAHARASHTRA & ORS. …RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO. 981 OF 2019

WRIT PETITION (CIVIL) NO. 1408 OF 2019

AND

WRIT PETITION (CIVIL) NO. 743 OF 2020

J U D G M E N T

A.M. KHANWILKAR, J.

1. These writ petitions under Article 32 of the Constitution of

India seek a declaration that Section 12(2)(c) of the Maharashtra

Zilla Parishads and Panchayat Samitis Act, 19611

, is ultra vires the

1 for short, “the 1961 Act”

provisions of Articles 243D and 243T including Articles 14 and

16 of the Constitution of India. In addition, the validity of the

notifications dated 27.7.2018 and 14.2.2020 issued by the State

Election Commission, Maharashtra providing for reservation

exceeding 50 per cent in respect of Zilla Parishads and Panchayat

Samitis of districts Washim, Akola, Nagpur and Bhandara have

been questioned and it is prayed that the same be quashed and set

aside. A district wise chart has been presented to illustrate the

excess reserved percentage and seats (more than aggregate 50 per

cent of total seats), in some of the districts, which reads thus:

“District: Washim

Particulars Total

Seats

General Reserved Exceed 50 per cent

SC ST OBC Percentage Seats

Zilla Parishad 52 23 11 04 14 5.76 % 3

Gram

Panchayat

490 219 100 39 132 5.30 % 26

District: Bhandara

Particulars Total

Seats

General Reserved Exceed 50 per cent

SC ST OBC Percentage Seats

Zilla Parishad 52 25 09 04 14 1.92 % 1

Gram

Panchayat

541 261 91 43 146 1.75 % 9

District: Akola

Particulars Total

Seats

General Reserved Exceed 50 per cent

SC ST OBC Percentage Seats

Zilla Parishad 53 22 12 05 14 8.49 % 4

Panchayat

Samiti

106 44 25 09 28 8.49 % 9

Gram

Panchayat

539 226 125 42 146 8.07 % 43

District: Nagpur

Particulars Total

Seats

General Reserved Exceed 50 per cent

SC ST OBC Percentage Seats

Zilla Parishad 58 25 10 07 16 6.89 % 4

Panchayat

Samiti

116 51 19 15 31 6.03 % 7

Gram

Panchayat

772 330 137 97 208 7.25 % 56

District: Gondiya

Particulars Total

Seats

General Reserved Exceed 50 per cent

SC ST OBC Percentage Seats

Zilla Parishad 53 23 06 10 14 6.60 % 3

Panchayat

Samiti

106 45 12 19 30 7.54 % 8

Gram

Panchayat

544 232 66 99 147 7.35 % 40”

(emphasis supplied)

2. The conundrum in these matters revolves around the

exposition of the Constitution Bench of this Court in K. Krishna

Murthy (Dr.) & Ors. v. Union of India & Anr.2

. Relying on the

dictum in the said decision, the petitioners would urge that it is no

more open to the respondents to reserve more than 50 per cent

(aggregate) seats in the concerned local bodies by providing

reservation for Scheduled Castes3/Scheduled Tribes4/Other

2 (2010) 7 SCC 202

3 for short, “the SCs”

4 for short, “the STs”

Backward Classes5

. Whereas, the respondentState would urge

that the stated decision recognises that it is permissible to reserve

seats for OBCs to the extent permissible in the 1961 Act. Further,

in exceptional situation, the reservation for SCs/STs/OBCs in the

concerned local bodies (Zilla Parishads and Panchayat Samitis)

could exceed even 50 per cent of the total seats. This is the central

issue to be dealt with in the present writ petitions.

3. The provision in the form of Section 12 of the 1961 Act

enables the respondents to reserve 27 per cent of seats in the

concerned Zilla Parishads and Panchayat Samitis. Section 12 of

the 1961 Act is reproduced hereunder:

“12. Division of District into electoral division.—(1) The

State Election Commission shall, for the purposes of

election of Councillors divide every District; into

electoral divisions (the territorial extent of any such

division not being outside the limits of the same

Block), each returning one Councillor, and there shall

be a separate election for each electoral division:

Provided that, such electoral division shall be

divided in such a manner that the ratio between the

population of each electoral division and the total

number of Councillors to be elected for the Zilla

Parishad shall, so far as practicable, be the same

throughout the Zilla Parishad area:

Provided further that, while distributing such

electoral divisions among the Panchayat Samitis, not

less than two electoral divisions shall be allotted to

each Panchayat Samiti.

5 for short, “the OBCs”

(2)(a) In the seats to be filled in by election in a

Zilla Parishad there shall be seats reserved for persons

belonging to the Scheduled Castes, Scheduled Tribes,

Backward Class of citizens and women, as may be

determined by the State Election Commission in the

prescribed manner:

(b) the seats to be reserved for the persons

belonging to the Scheduled Castes and the Scheduled

Tribes in a Zilla Parishad shall bear, as nearly as may

be, the same proportion to the total number of seats to

be filled in by direct election in that Zilla Parishad as

the population of the Scheduled Castes or, as the case

may be, the Scheduled Tribes in that Zilla Parsishad

area bears to the total population of that area and

such seats shall be allotted by rotation to different

electoral divisions in a Zilla Parishad:

Provided that, in a Zilla Parishad comprising

entirely the Scheduled Areas, the seats to be reserved

for the Scheduled Tribes shall not be less than onehalf of the total number of seats in the Zilla Parishad:

Provided further that, the reservation for the

Scheduled Tribes in a Zilla Parishad falling only

partially in the Scheduled Areas shall be in accordance

with the provisions of clause (b):

Provided also that onehalf of the total number

of seats so reserved shall be reserved for women

belonging to the Scheduled Castes or, as the case may

be, the Scheduled Tribes:

belonging to the category of Backward Class of

Citizens shall be 27 per cent. of the total number

of seats to be filled in by election in a Zilla

Parishad and such seats shall be allotted by

rotation to different electoral divisions in a Zilla

Parishad :

Provided that, in a Zilla Parishad comprising

entirely the Scheduled Areas, the seats to be

reserved for the persons belonging to the Backward

Class of Citizens shall be 27 per cent. of the seats

remaining (if any), after reservation of the seats for

the Scheduled Tribes and the Scheduled Castes :

Provided further that, the reservation for the

persons belonging to the Backward Class of

Citizens in a Zilla Parishad falling only partially in

the Scheduled Areas shall be in accordance with

the provisions of clause (c) :

Provided also that onehalf of the total

number of seats so reserved shall be reserved for

women belonging to the category of Backward

Class of Citizens:

(d) onehalf (including the number of seats

reserved for women belonging to the Scheduled

Castes, Scheduled Tribes and the category of

Backward Class of Citizens) of the total number of

seats to be filled in by direct election in a Zilla

Parishad shall be reserved for women and such seats

shall be allotted by rotation to different electoral

divisions in a Zilla Parishad.

(3) The reservation of seats (other than the

reservation for women) under subsection (2) shall

cease to have effect on the expiration of the period

specified in Article 334 of the Constitution of India.”

(emphasis supplied)

4. We may straight away advert to the decision in K. Krishna

Murthy (supra). In paragraph 9 of the decision, this Court

formulated two questions for its consideration, the same read thus:

“9. In light of the submissions that have been

paraphrased in the subsequent paragraphs, the

contentious issues in this case can be framed in the

following manner:

(i) Whether Article 243D(6) and Article 243T(6)

are constitutionally valid since they enable

reservations in favour of backward classes for

the purpose of occupying seats and chairperson

positions in panchayats and municipalities

respectively?

(ii) Whether Article 243D(4) and Article 243T(4)

are constitutionally valid since they enable the

reservation of chairperson positions in panchayats

and municipalities respectively?”

(emphasis supplied)

5. As regards the discussion on the question of validity of

reservation in favour of backward classes, the Court proceeded to

examine the same in paragraphs 58 to 67 of the reported decision.

The essence of the view expressed by the Constitution Bench on

the said question is that Articles 243D(6) and 243T(6) of the

Constitution of India are merely enabling provisions and it would

be improper to strike them down as violative of the equality clause.

At the same time, the Court noted that these provisions did not

provide guidance on how to identify the backward classes and

neither do they specify any principle for the quantum of such

reservations. Instead, discretion has been conferred on the State

legislatures to design and confer reservation benefits in favour of

backward classes. While dealing with the provisions pertaining to

reservations in favour of backward classes concerning the States of

Karnataka and Uttar Pradesh wherein the quantum of reservation

was 33 per cent and 27 per cent respectively, the Court noted that

objections can be raised even with regard to similar provisions of

some other State legislations. The real concern was about

overbreadth in the State legislations and while dealing with that

aspect in paragraphs 60 to 63, the Court noted thus:

“60. There is no doubt in our minds that excessive and

disproportionate reservations provided by the State

legislations can indeed be the subjectmatter of

specific challenges before the courts. However, the

same does not justify the striking down of Articles

243D(6) and 243T(6) which are constitutional

provisions that enable reservations in favour of

backward classes in the first place. As far as the

challenge against the various State legislations is

concerned, we were not provided with adequate

materials or argumentation that could help us to

make a decision about the same. The identification

of backward classes for the purpose of reservations

is an executive function and as per the mandate of

Article 340, dedicated commissions need to be

appointed to conduct a rigorous empirical inquiry

into the nature and implications of backwardness.

61. It is also incumbent upon the executive to

ensure that reservation policies are reviewed from

time to time so as to guard against overbreadth. In

respect of the objections against the Karnataka

Panchayat Raj Act, 1993, all that we can refer to is the

Chinnappa Reddy Commission Report (1990) which

reflects the position as it existed twenty years ago. In

the absence of updated empirical data, it is wellnigh impossible for the courts to decide whether

the reservations in favour of OBC groups are

proportionate or not.

62. Similarly, in the case of the State of Uttar Pradesh,

the claims about the extent of the OBC population are

based on the 1991 census. Reluctant as we are to

leave these questions open, it goes without saying that

the petitioners are at liberty to raise specific challenges

against the State legislations if they can point out

flaws in the identification of backward classes with the

help of updated empirical data.

63. As noted earlier, social and economic

backwardness does not necessarily coincide with

political backwardness. In this respect, the State

Governments are well advised to reconfigure their

reservation policies, wherein the beneficiaries

under Articles 243D(6) and 243T(6) need not

necessarily be coterminous with the Socially and

Educationally Backward Classes (SEBCs) [for the

purpose of Article 15(4)] or even the backward

classes that are underrepresented in government

jobs [for the purpose of Article 16(4)]. It would be

safe to say that not all of the groups which have been

given reservation benefits in the domain of education

and employment need reservations in the sphere of

local selfgovernment. This is because the barriers to

political participation are not of the same

character as barriers that limit access to education

and employment. This calls for some fresh

thinking and policymaking with regard to

reservations in local selfgovernment.”

(emphasis supplied)

6. Again, in paragraph 64, the Court noted about the absence of

explicit constitutional guidance as to the quantum of reservation in

favour of backward classes in local selfgovernment. For that, the

thumb rule is that of proportionate reservation. The Court

hastened to add a word of caution, which in, essence, is the

declaration of the legal position that the upper ceiling of 50 per

cent (quantitative limitation) with respect to vertical reservations in

favour of SCs/STs/OBCs taken together should not be breached.

This has been made amply clear and restated even in paragraph 67

of the reported decision, which reads thus:

“67. In the recent decision reported as Union of

India v. Rakesh Kumar [(2010) 4 SCC 50 : (2010) 1

SCC (L&S) 961 : (2010) 1 Scale 281] this Court has

explained why it may be necessary to provide

reservations in favour of the Scheduled Tribes that

exceed 50% of the seats in panchayats located in the

Scheduled Areas. However, such exceptional

considerations cannot be invoked when we are

examining the quantum of reservations in favour of

backward classes for the purpose of local bodies

located in general areas. In such circumstances,

the vertical reservations in favour of

SCs/STs/OBCs cannot exceed the upper limit of

50% when taken together. It is obvious that in

order to adhere to this upper ceiling, some of the

States may have to modify their legislations so as

to reduce the quantum of the existing quotas in

favour of OBCs.”

(emphasis supplied)

On that analysis, the Court in conclusion noted as follows:

“Conclusion

82. In view of the above, our conclusions are:

(i) The nature and purpose of reservations in the

context of local selfgovernment is considerably

different from that of higher education and public

employment. In this sense, Article 243D and Article

243T form a distinct and independent constitutional

basis for affirmative action and the principles that

have been evolved in relation to the reservation

policies enabled by Articles 15(4) and 16(4) cannot be

readily applied in the context of local selfgovernment.

Even when made, they need not be for a period

corresponding to the period of reservation for the

purposes of Articles 15(4) and 16(4), but can be much

shorter.

(ii) Article 243D(6) and Article 243T(6) are

constitutionally valid since they are in the nature of

provisions which merely enable the State Legislatures

to reserve seats and chairperson posts in favour of

backward classes. Concerns about disproportionate

reservations should be raised by way of specific

challenges against the State legislations.

(iii) We are not in a position to examine the

claims about overbreadth in the quantum of

reservations provided for OBCs under the

impugned State legislations since there is no

contemporaneous empirical data. The onus is on

the executive to conduct a rigorous investigation

into the patterns of backwardness that act as

barriers to political participation which are indeed

quite different from the patterns of disadvantages

in the matter of access to education and

employment. As we have considered and decided only

the constitutional validity of Articles 243D(6) and

243T(6), it will be open to the petitioners or any

aggrieved party to challenge any State legislation

enacted in pursuance of the said constitutional

provisions before the High Court. We are of the view

that the identification of “backward classes” under

Article 243D(6) and Article 243T(6) should be

distinct from the identification of SEBCs for the

purpose of Article 15(4) and that of backward

classes for the purpose of Article 16(4).

(iv) The upper ceiling of 50% vertical

reservations in favour of SCs/STs/OBCs should not

be breached in the context of local selfgovernment. Exceptions can only be made in order

to safeguard the interests of the Scheduled Tribes

in the matter of their representation in panchayats

located in the Scheduled Areas.

(v) The reservation of chairperson posts in the

manner contemplated by Articles 243D(4) and 243

T(4) is constitutionally valid. These chairperson posts

cannot be equated with solitary posts in the context of

public employment.”

(emphasis supplied)

7. On a fair reading of the exposition in the reported decision,

what follows is that the reservation for OBCs is only a “statutory”

dispensation to be provided by the State legislations unlike the

“constitutional” reservation regarding SCs/STs which is linked to

the proportion of population. As regards the State legislations

providing for reservation of seats in respect of OBCs, it must

ensure that in no case the aggregate vertical reservation in respect

of SCs/STs/OBCs taken together should exceed 50 per cent of the

seats in the concerned local bodies. In case, constitutional

reservation provided for SCs and STs were to consume the entire

50 per cent of seats in the concerned local bodies and in some

cases in scheduled area even beyond 50 per cent, in respect of

such local bodies, the question of providing further reservation to

OBCs would not arise at all. To put it differently, the quantum of

reservation for OBCs ought to be local body specific and be so

provisioned to ensure that it does not exceed the quantitative

limitation of 50 per cent (aggregate) of vertical reservation of seats

for SCs/STs/OBCs taken together.

8. Besides this inviolable quantitative limitation, the State

Authorities are obliged to fulfil other preconditions before

reserving seats for OBCs in the local bodies. The foremost

requirement is to collate adequate materials or documents that

could help in identification of backward classes for the purpose of

reservation by conducting a contemporaneous rigorous empirical

inquiry into the nature and implications of backwardness in the

concerned local bodies through an independent dedicated

Commission established for that purpose. Thus, the State

legislations cannot simply provide uniform and rigid quantum of

reservation of seats for OBCs in the local bodies across the State

that too without a proper enquiry into the nature and implications

of backwardness by an independent Commission about the

imperativeness of such reservation. Further, it cannot be a static

arrangement. It must be reviewed from time to time so as not to

violate the principle of overbreadth of such reservation (which in

itself is a relative concept and is dynamic). Besides, it must be

confined only to the extent it is proportionate and within the

quantitative limitation as is predicated by the Constitution Bench

of this Court.

9. Notably, the Constitution Bench adverted to the fact that

provisions of most of the State legislations may require a relook,

but left the question regarding validity thereof open with liberty to

raise specific challenges thereto by pointing out flaws in the

identification of the backward classes in reference to the empirical

data. Further, the Constitution Bench expressed a sanguine hope

that the concerned States ought to take a fresh look at policy

making with regard to reservations in local selfgovernment in light

of the said decision, whilst ensuring that such a policy adheres to

the upper ceiling including by modifying their legislations — so as

to reduce the quantum of the existing quotas in favour of OBCs

and make it realistic and measurable on objective parameters.

10. Despite this declaration of law and general observations cum

directions issued to all the States on the subject matter, the

legislature of the State of Maharashtra did not take a relook at the

existing provisions which fell foul of the law declared by the

Constitution Bench of this Court. As a matter of fact, couple of

writ petitions6

came to be filed in the Bombay High Court in which

solemn assurance was given on behalf of the State of Maharashtra

6 W.P. (Civil) No.6676 of 2016 and W.P. (Civil) No.5333 of 2018

that necessary corrective measures in light of the decision of this

Court, will be taken in right earnest. The situation, however,

remained unchanged.

11. As a matter of fact, no material is forthcoming as to on what

basis the quantum of reservation for OBCs was fixed at 27 per

cent, when it was inserted by way of amendment in 1994. Indeed,

when the amendment was effected in 1994, there was no guideline

in existence regarding the modality of fixing the limits of reserved

seats for OBCs as noted in the decision of the Constitution Bench

in K. Krishna Murthy (supra). After that decision, however, it was

imperative for the State to set up a dedicated Commission to

conduct contemporaneous rigorous empirical inquiry into the

nature and implications of backwardness and on the basis of

recommendations of that Commission take follow up steps

including to amend the existing statutory dispensation, such as to

amend Section 12(2)(c) of the 1961 Act. There is nothing on record

that such a dedicated Commission had been set up until now. On

the other hand, the stand taken by the State Government on

affidavit, before this Court, would reveal that requisite information

for undertaking such empirical inquiry has not been made

available to it by the Union of India. In light of that stand of the

State Government, it is unfathomable as to how the respondents

can justify the notifications issued by the State Election

Commission to reserve seats for OBCs in the concerned local

bodies in respect of which elections have been held in the year

December 2019/January 2020, which notifications have been

challenged by way of present writ petitions. This Court had

allowed the elections to proceed subject to the outcome of the

present writ petitions.

12. Be that as it may, it is indisputable that the triple

test/conditions required to be complied by the State before

reserving seats in the local bodies for OBCs has not been done so

far. To wit, (1) to set up a dedicated Commission to conduct

contemporaneous rigorous empirical inquiry into the nature and

implications of the backwardness qua local bodies, within the

State; (2) to specify the proportion of reservation required to be

provisioned local body wise in light of recommendations of the

Commission, so as not to fall foul of overbreadth; and (3) in any

case such reservation shall not exceed aggregate of 50 per cent of

the total seats reserved in favour of SCs/STs/OBCs taken together.

In a given local body, the space for providing such reservation in

favour of OBCs may be available at the time of issuing election

programme (notifications). However, that could be notified only

upon fulfilling the aforementioned preconditions. Admittedly, the

first step of establishing dedicated Commission to undertake

rigorous empirical inquiry itself remains a mirage. To put it

differently, it will not be open to respondents to justify the

reservation for OBCs without fulfilling the triple test, referred to

above.

13. As regards Section 12(2)(c) of the 1961 Act inserted in 1994,

the plain language does give an impression that uniform and rigid

quantum of 27 per cent of the total seats across the State need to

be set apart by way of reservation in favour of OBCs. In light of the

dictum of the Constitution Bench, such a rigid provision cannot be

sustained much less having uniform application to all the local

bodies within the State. Instead, contemporaneous empirical

inquiry must be undertaken to identify the quantum qua local body

or local body specific.

14. In our opinion, the provision in the form of Section 12(2)(c)

can be saved by reading it down, to mean that reservation in favour

of OBCs in the concerned local bodies may be notified to the

extent, that it does not exceed 50 per cent of the total seats

reserved in favour of SCs/STs/OBCs taken together. In other

words, the expression “shall be” preceding 27 per cent occurring in

Section 12(2)(c), be construed as “may be” including to mean that

reservation for OBCs may be up to 27 per cent but subject to the

outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs

taken together, as enunciated by the Constitution Bench of this

Court. On such interpretation, Section 12(2)(c) can be saved and

at the same time, the law declared by the Constitution Bench of

this Court can be effectuated in its letter and spirit.

15. The argument of the respondentState that the reservations in

favour of OBCs must be linked to population, is very wide and

tenuous. That plea if countenanced, will be in the teeth of the

dictum of the Constitution Bench of this Court wherein it has been

noted and rejected. The Court has expounded about the

distinction in the matter of reservation in favour of SCs and STs on

the one hand, which is a “constitutional” reservation linked to

population unlike in the case of OBCs which is a “statutory”

dispensation. Therefore, the latter reservation for OBCs must be

proportionate in the context of nature and implications of

backwardness and in any case, is permissible only to the extent it

does not exceed the aggregate of 50 per cent of the total seats in

the local bodies reserved for SCs/STs/OBCs taken together.

16. Indeed, this Court had allowed the State Election Commission

to conduct elections on the basis of old dispensation in terms of

orders dated 28.08.2019, 07.11.2019 and 13.12.2019, by

recording prima facie view as noted in the order dated 18.12.2019.

However, it was made amply clear that the elections in respect of

five districts (Nagpur, Washim, Akola, Dhule and Nandurbar) were

allowed to proceed subject to the outcome of present writ petition(s)

questioning the validity of Section 12(2)(c) of the 1961 Act. Thus

understood, the respondents cannot take benefit of the prima facie

observations to repel the challenge to the old dispensation being

continued despite the decision of the Constitution Bench of this

Court and more particularly, to the notifications reserving seats for

OBC candidates exceeding the quantitative limitation of aggregate

50 per cent of total seats in the local bodies concerned.

17. In light of the finding recorded hitherto (that no inquiry much

less contemporaneous rigorous empirical inquiry into the nature

and implications of backwardness by a dedicate Commission

established by the State for the purpose has been undertaken), it is

not open to the State to fall back on Section 12(2)(c) as enacted in

1994. That provision, as aforementioned, is an enabling provision

and would become functional and operational only upon fulfilling

triple test as specified by the Constitution Bench of this Court.

That is the sine qua non or the quintessence for exercise of power

to reserve seats for OBCs in the local bodies. Indeed, the exercise

of power to reserve seats for OBCs springs from Section 12(2)(c) of

the 1961 Act, but that is hedged by conditions and limitations

specified by the Constitution Bench of this Court and would not get

ignited until such time.

18. Thus understood, the impugned notifications issued by the

State Election Commission reserving seats for OBCs in the

concerned local bodies, suffer from the vice of foundational

jurisdictional error. The impugned notification(s) to the extent it

provides for reservation for OBCs in the concerned local bodies, is,

therefore, void and without authority of law.

19. A priori, the elections conducted by the State Election

Commission on the basis of such notifications concerning reserved

OBC seats alone are vitiated and must be regarded as non est in

the eyes of law from its inception in the wake of declaration of law

in that regard by the Constitution Bench of this Court. The fact

that it will impact large number of seats throughout the five

districts or elsewhere where such elections are conducted in

2019/2020, would make no difference. For, such reservation was

not permissible in law unless the essential steps, as propounded

by the Constitution Bench of this Court, had been taken before

issuing the election notifications, that too only to the extent of

quantitative limitation. This position would apply in full measure,

to all elections conducted in respect of reserved OBC seats by the

State Election Commission duly notifying that the same will be

subject to the outcome of these writ petitions. The State Election

Commission must proceed to take follow up steps and notify

elections for seats vacated in terms of this decision for being filled

up by open/general category candidates for the remainder tenure

of the concerned Gram Panchayats and Samitis. We are inclined to

take this view as it is not possible to identify which of the reserved

seat for OBCs in the concerned local body would fall foul of the law

declared by the Constitution Bench of this Court, amongst the total

seats reserved for OBCs.

20. The respondentState through learned counsel had urged that

this Court ought not to entertain the present writ petitions as writ

petitions7

were still pending before the High Court for the same

relief. We are not impressed by this hyper technical objection. It is

true that petitioners in two writ petitions had first approached the

High Court, but still the issue under consideration needs to be

answered at the instance of petitioners in other two writ petitions

praying for the same reliefs. Indeed, it would have been possible

for us to request the High Court to decide the issue in the first

instance but as the matter essentially pertains to the width of

declaration and directions given by the Constitution Bench of this

Court in K. Krishna Murthy (supra) and its implementation in its

letter and spirit, we deem it appropriate to answer the issue under

consideration.

21. It has been faintly suggested by the respondentState in its

written submission that the writ petition may be set down for

further hearing. However, we fail to fathom why such a plea has

7 W.P. (Civil) No. 2756 of 2019; W.P. (Civil) No. 2893 of 2019 and W.P. (Civil) No.

9159 of 2020

been put forth especially when the State has already filed a

consolidated affidavit in this Court, apart from the comprehensive

written submissions filed after closure of oral arguments. In our

opinion, no fruitful purpose will be served by showing that

indulgence. For, the matter is capable of and is being disposed of

on the basis of undisputed fact that before instructing the State

Election Commission to reserve seats for OBC groups in the local

bodies, no attempt was made by the State Government to set up a

dedicated Commission to conduct contemporaneous rigorous

empirical inquiry into the nature and implications of

backwardness, and then to act upon the report of the Commission.

That fact is reinforced from the consolidated affidavit filed by the

respondentState in SLP (Civil) No. 33904 of 2017, which was the

lead matter until it was disposed of on 17.02.2021, after analogous

hearing with the present writ petitions. That consolidated affidavit

was filed pursuant to the directions given by this Court vide order

dated 19.01.2021, which

reads thus:

“Heard learned counsel for the parties. We direct

the RespondentState to file a consolidated affidavit

dealing with the issues raised in each of these

proceedings including in the form of interlocutory

application(s) to be served on learned counsel

appearing for the concerned petitioners/applicants

within three weeks from today.

We clarify that the consolidated affidavit will

be a common affidavit used in the concerned

petitioners and application(s) as the case may be.

List on 11.02.2021.”

(emphasis supplied)

Accordingly, the consolidated affidavit dated 04.02.2021 came to

be filed by the State duly sworn by the Deputy Commissioner

(Establishment), which reads thus:

“COUNTER AFFIDAVIT ON BEHALF OF

RESPONDENT

I, D.D. Shinde age 55 years, Occ. Service, presently

working as Deputy Commissioner (Establishment) in

the office of Divisional Commissioner, Nashik,

Maharashtra, do hereby submit on solemn affirmation

as under that:

1. I am the authorized officer of the respondent in

the present Special Leave Petition. I am also

authorized to file Counter Affidavit on behalf of

Respondent as such I am well conversant with the

facts and circumstances of the case and hence I am

competent and authorized to swear this Counter

Affidavit on behalf of the Respondent.

2. I have gone through the contents of the present

Special Leave Petition in reply thereto the answering

Respondent seeks to file this Counter Affidavit in order

to oppose the averments and contentions of the

Special Leave Petition with liberty of this Hon’ble Court

to file a further Counter Affidavit as and when

necessary and with the permission of this Hon’ble

Court.

3. The State Government has filed affidavits dated

05.11.2019 and 13.03.2020, and I repeat and

reiterate the contents of the same as if the same have

been set out herein, in extenso. I say that I am filing

this Affidavit in compliance of the directions of the

Hon’ble Court in its order dated 19.01.2021, passed in

the above Special Leave Petition.

4. I say that the elections were held to the Zilla

Parishads of five districts in Maharashtra, namely

Nagpur, Washim, Akola, Dhule and Nandurbar in

December 2019/January 2020, pursuant to the orders

passed by this Hon’ble Court. In all the aforesaid

districts, the reservation exceeded 50%. It is the

contention of the Petitioners that in all the aforesaid

districts the reservation could not have exceeded 50%

as it was the upper limit as set out in the judgments of

Indra Sawhney vs. Union of India reported in (1992) 3

SCC 217 and the judgment of K. Krushnamurthy vs.

Union of India reported in (2010) 7 SCC 202. The only

issue that essentially remains for consideration of this

Hon’ble Court, in all these matters is whether the

reservation in all the aforesaid five districts could have

exceeded 50%.

5. I repeat and reiterate that the elections held in

December 2019/January 2020 have been held on the

basis of the old dispensation, but for future elections,

the State Government will have to provide category

wise breakup of population and in particular regarding

Backward Class Category (BCC), as the information

can be provided only by the Central Government. It is

therefore submitted that, I.A. No.188324/2019 be

allowed and the Registrar General of India, Ministry of

Home Affairs, Government of India and the Secretary,

Ministry of Social Justice and Welfare be added as

party respondents in the aforesaid Special Leave

Petitions. It is further submitted that, I.A.

No.188318/2019 be allowed and the Registrar General

of India, Ministry of Home Affairs, Government of India

and the Secretary, Ministry of Social Justice and

Welfare be directed to make available the data of

SocioEconomic Census 2011, to the extent only

relating to the caste of the citizens of Rural

Maharashtra, to enable the Government of

Maharashtra to calculate population belonging to

castes that make a part of Backward Classes of

Citizens (BCC) in Maharashtra.

6. I repeat and reiterate with regard to the decision

of the Constitution Bench of this Hon’ble Court in K.

Krishnamurthy (supra), and in particular paragraph

no.83(iv) thereof, it is submitted with respect that, a

reading of paragraphs no.59, 64, 66 and 67 thereof,

create a doubt as to whether 50% vertical reservations

referred to in paragraph no.82(iv) can be regarded as

unalterable. A breakup of the figures in respect of the

five districts (mentioned in the order dated

18.12.2019) show that if the direction given in

paragraph no.82(iv) are to be strictly complied with, it

may not be possible to give effect thereto, at least in

respect of Dhule and Nandurbar districts which have

high tribal population.

7. I submit that in the case of K. Krushna Murthy

(Supra) the Hon’ble Constitution Bench of this Hon’ble

Court lays down that the nature and purpose of

reservations in the context of local selfgovernment is

considerably different from that of higher education

and public employment. It further lays down that

Article 243D and Article 243T form a distinct and

independent constitutional basis for affirmative action

and the principle that have been evolved in relation to

the reservation policies enabled by Articles 15(4) and

16(4) of the Constitution, cannot be readily applied in

the context of local selfgovernment.

8. I submit that in the absence of explicit

constitutional guidance as to the quantum of

reservation in favour of backward classes in local selfgovernment, the rule of thumb is that of ‘proportionate

reservation’. Admittedly, reservations in excess of 50%

do exist in some exceptional cases, when it comes to

the domain of political representation, which is the

outcome of exceptional considerations in relation to

these areas. Similarly, vertical reservations in excess

of 50% are permissible in the composition of local selfgovernment institutions located in the Fifth Schedule

Areas. I submit that in the judgment of Union of India

v. Rakesh Kumar reported in (2010) 4 SCC 50, this

Hon’ble Court has explained why it may be necessary

to provide reservations in favour of the Scheduled

Tribes that exceed 50% of the seats in local selfgovernments located in the Scheduled Area.

9. With regard to the elections held in December

2019/January 2020, in Nandurbar district, 44 out of

56 seats were reserved for Scheduled Tribes (ST)

category which was in keeping with the population

ratio. This itself consumed 50% upper limit provided

by the Constitution Bench of this Hon’ble Court,

leaving 1 reservation for Scheduled Caste (SC)

Category. In respect of elections held in December

2019/January 2020, in Dhule district, 23 out of 56

seats were reserved for Scheduled Tribes (ST) category

which was in keeping with the population ratio. This

itself consumed 50% upper limit provided by the

Constitution Bench of this Hon’ble Court, leaving 3

reservation for Scheduled Caste (SC) Category. In

Dhule District the talukas of Saktri and Shirpur are

partly ‘Scheduled Areas’. In Nandurbar District, the

talukas of Navapur, Taloda, Akkalkuwa and Akrani are

fully ‘Scheduled Areas’ and the blocks of Nandurbar

and Shahda are partly ‘Scheduled Areas’. I say that

both Dhule and Nandurbar Districts, being partly

‘Scheduled Areas’ would fall within the exceptions laid

down in the case of Indra Sawhney (Supra). Further,

the decision of Indra Sawhney (Supra) was given in

respect of reservation measures enabled by Article

16(4) of the Constitution. The principles of reservation

which are applicable for public employment and for

admission to educational institutions cannot be

readily applied in respect of a reservation policy made

to protect the interests of the Scheduled Tribes by

assuring them of majority of reservation in Scheduled

Areas. Further, the case of Indra Sawhney (Supra)

reveals that though an upper limit of 50% was

prescribed for reservations in public employment, the

said decision recognizes the need of exceptional

treatment in some circumstances. The case of Indra

Sawhney (supra) prescribes an upper limit of 50% (in

paragraph 806 of the judgment) because Article 16(4)

deals with ‘adequate representation’ and not

‘proportionate representation’. Hence, the elections

held in December 2019/January 2020 ought not to set

aside for the districts of Dhule and Nandurbar

districts.

10. In any event, as set out in detail in the

Affidavit dated 13.3.2020, I say that the State

Government is unable to provide category wise

breakup of population and in particular regarding

Backward Class Category (BCC), as that

information can be provided only by the Central

Government and the same is not forthcoming. It is

important that the data of SocioEconomic to the

extent only of field relating to the caste of the

citizens of Rural Maharashtra, be provided to the

State Government by the Central Government, so

as to enable the State Government to calculate

population belonging to castes that make a part of

Backward Caste of Citizens (BCC) in Maharashtra.

With regard to the elections held in December

2019/January 2020, in Nagpur, Washim, and Akola

districts, the reservations exceeded 50% of the seats,

only by 6% to 8% and ought not to be set aside by this

Hon’ble Court.

11. I repeat and reiterate that it is important that

the data of SocioEconomic to the extent only of field

relating to the caste of the citizens of Rural

Maharashtra, be provided to the State Government by

the Central Government, so as to enable the State

Government to calculate population belonging to

castes that make a part of Backward Caste of Citizens

(BCC) in Maharashtra.

12. Considering the facts and circumstances of the

case in hand, the special leave petition deserves to be

dismissed.

13. That no new additional facts or documents,

which are not part of the record are stated or annexed

in the counter affidavit.

Hence this Counter Affidavit.

(Deponent)

Drawn by: Sd/

Rahul Chitnis, Advocate. (D.D. Shinde)”

(emphasis supplied)

22. As matter of fact, this affidavit plainly concedes that in case of

some local bodies, the reservation has far exceeded 50 per cent

with nominal seats for general category. At this stage, it may be

relevant to mention that the consolidated affidavit refers to the

previous affidavit(s) dated 5.11.2019 and 13.03.2020 which,

however, do not contain any other statement, or any additional

information, requiring scrutiny in the context of the issues

answered in this decision. The consolidated affidavit also refers to

three interlocutory applications filed in the disposed of SLP (Civil)

Nos. 3390433910 of 2017. IA No.188324 of 2019 was filed for

direction to allow impleadment of Registrar General of India,

Ministry of Home Affairs, Government of India and Secretary,

Ministry of Social Justice and Welfare as party respondents in the

SLP. That was because the State had sought directions against

that party to furnish census data on the basis of which analysis

could be done by the State for providing reservation to OBCs in the

local bodies, in the elections due in 2019/2020. That relief was

claimed by the State in IA No.188318 of 2019. Since the said

elections are completed, the State is free to pursue with the Union

of India for getting requisite information which can be then made

available to the dedicated Commission to be established by it for

conducting a contemporaneous rigorous empirical inquiry into the

nature and implications of backwardness of the concerned groups.

As regards IA No.108915 of 2019 referred to in the consolidated

affidavit, the relief claimed was to defer the impending elections in

the concerned Zilla Parishads and Panchayat Samitis. Those

elections having been completed in 2019/2020, obviously the relief

as claimed is worked out. We, therefore, fail to understand as to

why the State Government wants further hearing of the matter on

such flimsy and specious grounds. To observe sobriety, we say no

more.

23. We, however, appreciate the stand taken by the State Election

Commission which is in conformity with the exposition of the

Constitution Bench of this Court; and that it had issued impugned

notifications by making it amply clear to all concerned that the

elections were being conducted as directed by this Court and would

be subject to the outcome of the present writ petitions. The

elections were held only after this Court directed the State Election

Commission to ensure that the elections in the concerned Zilla

Parishads and Panchayat Samitis of as many as five districts (out

of 36 districts) of the State, were not being conducted even after

more than two years from the expiry of term of the outgoing

councillors/members of the concerned local bodies.

24. The State Election Commission had invited our attention to

the fact that, provision similar to Section 12(2)(c) of the 1961 Act

regarding reservation for OBCs finds place in other State

enactments8

concerning the establishment of Village Panchayat,

Municipal Council, Nagar Panchayat, Corporation, etc. Needless to

8 (1) The Maharashtra Village Panchayats Act, 1959 – Section 10(2)(c)

(2) Maharashtra Municipal Councils, Nagar Panchayats and Industrial

Townships Act, 1965 – Sections 9(2)(d) and 341(B)(4)

(3) The Maharashtra Municipal Corporations Act, 1949 – Section 5A(1)(c)

observe that the view taken in this judgment would apply with full

force to the interpretation and application of the provisions of the

stated Act(s) and the State Authorities must immediately move into

action to take corrective and follow up measures in right earnest

including to ensure that future elections to the concerned local

bodies are conducted strictly in conformity with the exposition of

this Court in K. Krishna Murthy (supra), for providing reservation

in favour of OBCs.

25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is

an enabling provision and needs to be read down to mean that it

may be invoked only upon complying with the triple conditions

(mentioned in paragraph 12 above) as specified by the Constitution

Bench of this Court, before notifying the seats as reserved for OBC

category in the concerned local bodies. Further, we quash and set

aside the impugned notifications to the extent they provide for

reservation of seats for OBCs being void and non est in law

including the follow up actions taken on that basis. In other

words, election results of OBC candidates which had been made

subject to the outcome of these writ petitions including so notified

in the concerned election programme issued by the State Election

Commission, are declared as non est in law and the vacancy of

seat(s) caused on account of this declaration be forthwith filled up

by the State Election Commission with general/open candidate(s)

for the remainder term of the concerned local bodies, by issuing

notification in that regard.

26. As a consequence of this declaration and direction, all acts

done and decisions taken by the concerned local bodies due to

participation of members (OBC candidates) who have vacated seats

in terms of this decision, shall not be affected in any manner. For,

they be deemed to have vacated their seat upon pronouncement of

this judgment, prospectively. This direction is being issued in

exercise of plenary power under Article 142 of the Constitution of

India to do complete justice.

27. It was urged that this Court ought not to exercise plenary

power under Article 142 and abjure from disturbing the completed

elections. However, we are not impressed with this contention

because participation in the elections conducted since December

2019 to the concerned local bodies across the State of Maharashtra

was on clear understanding that the results of the reserved seats

for OBCs would be subject to the outcome of these writ petitions.

That was clearly notified by the State Election Commission in the

election programme published by it at the relevant time, in

consonance with the directions given by this Court vide interim

orders. Therefore, the reliefs as claimed and being granted in

terms of this judgment, are in consonance with liberty given by this

Court.

28. Accordingly, these writ petitions must partly succeed. The

challenge to the validity of Section 12(2)(c) of the 1961 Act is

negatived. Instead, that provision is being read down to mean that

reservation in favour of OBCs in the concerned local bodies can be

notified to the extent that it does not exceed aggregate 50 per cent

of the total seats reserved in favour of SCs/STs/OBCs taken

together. In other words, the expression “shall be” preceding 27

per cent occurring in Section 12(2)(c), be construed as “may be”

including to mean that reservation for OBCs may be up to 27 per

cent but subject to the outer limit of 50 per cent aggregate in

favour of SCs/STs/OBCs taken together, as enunciated by the

Constitution Bench of this Court. However, the impugned

notifications/orders dated 27.7.2018 and 14.2.2020 and all other

similar notifications issued by the State Election Commission

during the pendency of these writ petitions mentioning that the

elections to the concerned local bodies were being held subject to

the outcome of these writ petitions, are quashed and set aside to

the extent of providing reservation of seats in the concerned local

bodies for OBCs. As a consequence, follow up steps taken on the

basis of such notifications including the declaration of results of

the candidates against the reserved OBC seats in the concerned

local bodies, are declared non est in law; and the seats are deemed

to have been vacated forthwith prospectively by the concerned

candidate(s) in terms of this judgment. The State Election

Commission shall take immediate steps to announce elections in

respect of such vacated seats, of the concerned local bodies, not

later than two weeks from today, to be filled by general/open

category candidates for the remainder term of the

Panchayat/Samitis. Ordered accordingly.

The writ petitions are disposed of in the above terms. No

order as to costs.

All pending applications also stand disposed of.

……………………………J.

(A.M. Khanwilkar)

……………………………J.

(Indu Malhotra)

……………………………J.

(Ajay Rastogi)

New Delhi;

March 04, 2021.

Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case.

Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 810 OF 2021

(ARISING OUT OF SLP(CIVIL) NO.15982 OF 2020

AMWAY INDIA ENTERPRISES PVT. LTD. … APPELLANT

VERSUS

RAVINDRANATH RAO SINDHIA & ANR. … RESPONDENTS

J U D G M E N T

R.F. Nariman, J.

1. Leave granted.

2. This appeal arises out of a petition filed under Section 11(6) of the

Arbitration and Conciliation Act, 1996 [“Arbitration Act”] by the

respondents in the Delhi High Court for appointment of a sole arbitrator.

The brief facts of the case are noted in the impugned order dated

03.12.2020 thus:

“2. The facts of the case, as noted from the petition are, in the

year 1998, the petitioners were appointed as Distributor for

respondent for undertaking sale, distribution and marketing of

its products in India and were registered as Amway Business

Owner (ABO)/ Amway Direct Seller (ADS), in the name of the

sole proprietorship ‘Sindhia Enterprises’ with ABO No. 141935.

According to the petitioners, they have set up a vast Line of

Sponsorship in the respondent Company, and nurtured and

supported close to 1500 ADSs, who have now set up their own

networks, and are in the category of Silver/ Gold/ Platinum/

Sapphire/ Emerald. From 2015, the renewal process for existing

ADSs became automatic, each year, without payment of any

fee. The respondent issued a Code of Ethics and Rules of

Conduct in 2015 to govern the terms of the relationship

between the respondent and the ADSs. The respondent also

started promoting registration of Preferred Customers (PCs)

directly through the respondent’s website, as customers of the

concerned ADS.

3. On the requirement of the respondent, necessary documents

were executed by the petitioners including contract for

distributorship, setting out the terms and conditions of the

distributorship, and to inter alia confirm the Code of Ethics and

Rules of Conduct, Legal Entity Authorisation Form (LEAF) etc.

Since then, the contract of the petitioners has been renewed

from time to time. The petitioners recorded client volume/sales

from their ABO account. The petitioners have also received

income on the sales generated by them for the months of

January to March, 2019 by the respondent. However, in April,

2019, upon logging into the respondent’s website, the

petitioners noted that they could not access their ABO account,

or view their LoS. They could only access their account as a

PC. Accordingly, between April, 2019 and December, 2019, the

petitioners raised a query with their Major Accounts Manager,

who informed them that their account had been reclassified as

a ‘PC’ account, since they have not complied with the criteria of

are corded re-sale related purchase in the last 12 months. The

petitioners learnt that this was a criteria in the fresh set of Terms

and Conditions issued by the respondent in December, 2016,

which was mandatorily required to be accepted by all ADSs, by

clicking on the ‘By clicking here you agree to abide by the new

Terms & Conditions’ button, immediately upon logging in on the

respondent’s website, to proceed further to their account.

According to the petitioner, this requirement was never

communicated to the petitioners in the past, nor was any notice

of termination issued by the respondent. This criterion is also in

violation of the Direct Selling Guidelines dated September 09,

2016.

4. The petitioners made repeated requests to restore their ABO

account. The petitioners attempted to resolve the aforesaid

disputes and differences amicably by mutual discussions with

the representatives of the respondent from April till December,

2019. However, the respondent has failed to consider the

petitioners’ request for restoration of their ADS account. On

June 26, 2020, the petitioners referred the matter for redressal

and review to Mr. Jon Sherk, Vice President and Deputy

General Counsel of Amway Global in January, 2020. The

petitioners were communicated about the rejection of their

request for restoration of their ADS account on June 26, 2020.

According to the petitioners, the respondent has now, with

effect from July, 2020 notified a new Code of Ethics & Rules of

Conduct wherein the respondent has now been given benefit of

a 2 year period for establishing sales, in accordance with the

DSG, and carved a provision for restoration of the ADS

account. Accordingly, the petitioners caused issuance of notice

invoking arbitration dated July 28, 2020 to the respondent

invoking the arbitration clause, Clause 12 of the Terms and

Conditions enclosed with the Amway Direct Seller Application

Form (Form-SA-88-ID), which is reproduced as under:

“12. Dispute Settlement. The parties shall

endeavour to settle any dispute or difference arising

out of or in connection with the Direct Seller

Contract through mutual discussions within 30 days

of such dispute arising. The Direct Seller agrees

that in the event it is not satisfied by any decision of

Amway, or in the event that any issue raised by the

Direct Seller has remained unresolved for a period

of more than two months, and / or during the

subsistence of this agreement or upon or after its

termination, any issue or dispute that the Direct

Seller may have regarding the interpretation or

operation of the clauses of this arrangement or any

issues arising there from shall be referred to

Grievance Redressal Committee set up by the

company. Any dispute, difference or claim

remaining unresolved post reference to the

Grievance Redressal committee discussions shall

be submitted to binding arbitration under the

provisions of the Indian Arbitration and Conciliation

Act, 1996. The venue of such arbitration shall be at

New Delhi and the award of the Arbitrator shall be

final and binding on all Parties. Subject to the

above, courts at New Delhi shall alone have

jurisdiction in relation to the Direct Seller Contract

and matters connected here to.”

5. The respondent replied vide letter dated August 20, 2020

wherein the respondent communicated that the name of the

Arbitrator as recommended by the petitioners was not

acceptable by it and sought time to respond with the name of

another Arbitrator. However, the respondent has till the filing of

the petition failed to issue any follow up reply further to its reply

dated August 20, 2020 even after expiry of 30 days’ time.”

3. The main plea taken by the learned counsel appearing on behalf of

the appellant, Amway India Enterprises Pvt. Ltd., in the Delhi High Court

was that a petition before the High Court is not maintainable as the dispute

relates to an international commercial arbitration, being covered by Section

2(1)(f)(i) of the Arbitration Act inasmuch as the respondents are husband

and wife who are both nationals of and habitually resident in the United

States of America. This plea was turned down by the impugned judgment

stating:

“23. Even the judgment of the Supreme Court in the case of

TDM Infrastructure (P) Ltd. v. UE Development India (P)

Ltd., (2008) 14 SCC 271 is not applicable in the facts of this

case, which have been noted above. Rather, the learned

counsel for the petitioners is justified in relying upon the

judgment in the case of Larsen & Toubro Ltd. – SCOMI

Engineering Bhd v. MMRDA, (2019) 2 SCC 271, wherein the

Supreme Court was concerned with a consortium consisting of

an Indian company and a foreign company and the Court took

note of the fact that the office of an unincorporated entity, i.e.

the consortium, being in Mumbai, as one of the factors for

arriving at the conclusion that the arbitration proceedings would

not be international commercial arbitration. No doubt a sole

proprietorship has no separate legal identity but in the case in

hand, two individuals, husband and wife, by joining together as

a proprietorship have taken a single Distributorship. The Code

of Ethics and Rules of Conduct issued by the respondent under

Clause 3.17.1 contemplates and recognises that a husband

and wife shall operate their Distributorship as single entity. The

proprietorship is an association or body of individuals with

central management in India.

24. The plea of Ms. Kumar that the petitioners being individuals

and habitual residents of USA, the case shall be covered by

Section 2 (1) (f) (i) of the Act of 1996 is not appealing in view of

my conclusion in the above paragraph.”

4. It was held that since the central management and control of this

association or body of individuals is exercised only in India under Section

2(1)(f)(iii), the dispute is not an international commercial arbitration, as a

result of which the High Court has jurisdiction under Section 11(6) to

appoint an arbitrator. Justice Brijesh Sethi, a retired Judge of the Delhi High

Court was, therefore, appointed as sole arbitrator.

5. Shri Parag Tripathi, learned Senior Advocate appearing on behalf of

the appellant, has argued that his predecessor’s plea in the High Court was

incorrectly turned down in that this case is really governed by Section 2(1)

(f)(i) and not by Section 2(1)(f)(iii). Once it is found that a party to an

arbitration agreement is an individual who is a national of, or habitually

resident in, any country other than India, it is not necessary to go to any

other sub-clauses of Section 2(1)(f), and as it is clear that the respondents,

who applied to the High Court under Section 11(6), are individuals who are

nationals of and habitually resident in the USA, would fall under Section

2(1)(f)(i), the High Court would have no jurisdiction, such petition having to

be filed only under Section 11(6) read with Section 11(9) to the Supreme

Court.

6. Ms. Manmeet Arora, learned counsel appearing on behalf of the

respondents, has supported the judgment under appeal, and has referred

to various documents which, according to her, make it clear that the

respondents, husband and wife, would have to be pigeonholed under

“association or body of individuals” under Section 2(1)(f)(iii) and not under

Section 2(1)(f)(i).

7. The question lies in a very narrow compass. As rightly contended by

Ms. Arora, the documentary evidence in this case would be decisive of

whether the requirements of sub-clause (i) to Section 2(1)(f) have been

met, in which case it is unnecessary to go to sub-clause (iii), as under

Section 2(1)(f), “at least one of the parties” must fall under sub-clauses (i)

to (iv) of Section 2(1)(f).

8. In a document entitled “Code of Ethics of Amway Direct Sellers”,

under “Rules of Conduct”, it is stipulated as follows:

“2.1.17 Legal Entity Authorisation Form” (LEAF) means the

document that must, in addition to the Direct Seller Contract, be

completed by a Direct Seller required to or electing to operate

an Amway Business in the name of an applicable legal entity.”

xxx xxx xxx

“3.1 Application and Starter Guide: In order to be considered

for an Amway distributorship, an individual(s) must, in

his/her/their own name(s) or on behalf of a legal entity, submit a

signed, completed Direct Seller Application(in Form SA-88-ID),

together with all required supporting documentation.

A distributorship may be taken up in individual capacity or as a

sole proprietorship concern, partnership firm or company.

Amway reserves the right to require that Applicants having NonResident Indian (NRI), Person of Indian Origin (PIO) or

Overseas Citizen of India (OCI) status operate distributorships

via certain types of legal entities.”

xxx xxx xxx

“3.14 Legal Entity Distributorships: A Direct Seller may own

and operate his or her Distributorship as a sole proprietary

concern or registered partnership firm or limited liability

company (LLC), provided it complies with certain requirements

and conditions. …”

xxx xxx xxx

“3.14.5 The sole business of the legal entity must be the

operation of an Amway Distributorship. No other business may

be conducted by such an entity.”

xxx xxx xxx

“3.17 Husband and Wife Distributorships: If both husband

and wife wish to become Direct Sellers, they must be

sponsored together for a single Distributorship. Husbands and

wives may not be sponsored in different Lines of Sponsorship.

Husbands and wives may not sponsor each other. If one

spouse is already a Direct Seller, the other spouse, upon

electing to become a Direct Seller, must join the same

Distributorship as his or her spouse.

3.17.1 A husband and wife shall operate their Distributorship as

a single entity. Therefore, each is held accountable for the

actions of the other so far as the Rules of Conduct are

concerned regardless of whether a husband or wife is active in

the distributorship or not.”

xxx xxx xxx

“4.13 Franchises and Territories: No Direct Seller shall

represent to anyone that there are exclusive franchises or

territories available under the Amway Sales and Marketing

Plan.

No Direct Seller shall represent that he or she, or anyone else

has the authority to grant, sell, assign, or transfer such

franchises or to assign or designate territories. No Direct Seller

or Sponsor may state or imply that he or she has a given

territory, nor that any other Direct Seller is operating outside his

territory.

Amway Direct Sellers have no territorial limits. They can

operate anywhere within India.”

xxx xxx xxx

“4.16 Exporting Amway Products: Amway Direct Sellers must

sell Amway products and/or sponsor prospective Amway Direct

Sellers within India only. No Direct Seller may export, or

knowingly sell to others who exports, Amway Products from

India, or from any other country in which Amway has

established operations, into any country regardless of whether

or not Amway is doing business in that country.

For important legal reasons, including trade names and

trademark protections; local laws on product registration,

packaging, labelling ingredient content and formulation, product

liability; customs and tax laws; and literature content or

language requirements. Amway must limit the resale of Amway

Products by Direct Sellers to only other Direct Sellers or retail

customers located within country in which the Direct Seller

legitimately buys the Amway Products and is authorised to do

business. The term “products” includes, without limitation, all

literature, sales aids, and any other items obtained by a Direct

Seller from Amway or from his sponsor or Platinum.

4.16.1 Exporting Rule: Personal Use

Globally, Amway’s Rules and Commercial Principles include

prohibitions on exporting and importing Amway products from

one market to another. Amway Direct Sellers may, however,

take Amway products across borders for personal use, with the

following limitations:

 The Amway Direct Seller is visiting another country and

personally places the product order in that country.

 The Amway Direct Seller physically picks up/receives the

products in one country and personally carries the products

to another country. There may be no couriers, shipping

companies, or freight forwarders involved.

 If the Amway Direct Seller has a Multiple Business in the

country visited, the order cannot be placed as a customer

order for an overseas customer.

 The products are for the Amway Direct Sellers personal use

only.

 The products may not be resold, distributed, or given away

under any circumstances.

 The products ordered must not be available in the Amway

Direct Seller’s home market.

 Durables (e.g. water treatment systems, air treatment

systems) may not be carried from one market to another

under any circumstances.

 The Amway Direct Seller order must not be for more than a

reasonable amount of product: under 300 USD annually.

 The personal use exclusion may not be used as a businessbuilding strategy.”

9. In what is referred to as the “Legal Entity Authorisation Form”, what

was filled up was “Legal Entity Authorisation Form: Sole Proprietor”. The

said form which was filled in by the respondents reads as follows:

“LEGAL ENTITY AUTHORISATION FORM:

SOLE PROPRIETORSHIP

Where an Amway Independent Business (“Amway Business”)

will be operated in India via a Sole Proprietorship (the “Entity”)

held by a Resident Indian, Non-Resident Indian (“NRI”), Person

of Indian Origin (“PIO”) or Overseas Citizen of India (“OCI”), the

Sole Proprietorship must, through the sole proprietor (the “Sole

Proprietor”), complete this Legal Entity Authorisation Form for

Amway Business Owners (the “Entity Agreement”) and submit

it to Amway India Enterprises Pvt. Ltd. (“AIE”). The Sole

Proprietor must agree to remain and ensure that the Entity

remains in full compliance with the Rules of Conduct for Amway

Business Owners. This Entity Agreement shall become effective

if and when AlE signs the completed form. This Entity

Agreement incorporated into and forms an integral part of the

Amway Distributor Agreement, which includes any and all

documents incorporated therein (the “ABO Contract”). In the

event of any conflict, the terms and conditions of this Entity

Agreement shall prevail.

xxx xxx xxx

“5. The Sole Proprietor agrees that :

A. The sole purpose of the Entity is to own and operate the

Amway Business identified above, unless AIE expressly allows

the Entity to own and operate more than one Amway business.

Neither the Entity nor the Sole Proprietor will own or operate

any other business or business interest.

xxx xxx xxx

C. Any NRI, PIO or OCl investment in the Entity, if and as

applicable, has been made on a non-repatriatable basis in

accordance with applicable foreign exchange laws of India.

xxx xxx xxx

G. The Entity shall, in accordance with the laws of India and for

all matters connected to the Amway Business, exclusively use a

duly authorised Indian rupee bank account which, if applicable,

operates on a non-repatriatable basis.

H. The Sole Proprietor shall be responsible for his or her, and

the Entity’s, compliance with the Amway Rules of Conduct and

the applicable laws with respect to the operation of the Amway

Business by the Entity, including foreign exchange laws. Any

violation of the aforesaid entitles AIE to terminate the ABO

Contract and the Entity Agreement.

xxx xxx xxx”

10. Under “authorised signature”, the entity’s name was filled in as

Sindhia Enterprises and the proprietor was filled in as Ravindranath Rao

Sindhia (respondent no. 1 herein). This was done pursuant to an

application again filed in a printed form, given by the appellant to the

respondents, which reads as follows:

11. A reading of the application form as filled in, together with the Code of

Ethics, would show that a distributorship may be taken up either in

individual capacity, a sole proprietorship concern, partnership firm, or

company. When it comes to a husband and wife’s distributorship, they are

entitled not to two, but to a single distributorship, it being made clear under

clause 3.17 of the Code of Ethics that they are to operate only as a single

entity. The form that was filled in made it clear that the respondents applied

to become a distributor as a sole proprietorship, it being made clear that

the husband, Ravindranath Rao Sindhia, was the sole proprietor / “primary

applicant”, the wife, Indumathi Sindhia, being a “co-applicant”.

12. However, Ms. Arora argued, from a reading of the Code of Ethics and

correspondence between the parties, that there was no international flavour

whatsoever to the transaction as the business that is to be conducted can

be conducted only in India, an exception being made only for personal use

under clause 4.16.1. Most importantly, the address of the so-called sole

proprietorship in all the correspondence between the parties was the

address of the Bangalore office of the sole proprietorship.

13. Ms. Arora also strongly relied upon the judgment of this Court in

Larsen & Toubro Ltd.–SCOMI Engineering Bhd v. MMRDA, (2019) 2

SCC 271. This Court was concerned with an agreement between the

MMRDA, an Indian company, and a consortium of Larsen and Toubro, an

Indian company together with Scomi Engineering Bhd, a Malaysian

company. The argument that was pressed in the appeal before this Court

was that since a Malaysian company was involved, it would be a body

corporate which is incorporated in a country other than India, which would

attract the provisions of Section 2(1)(f)(ii) of the Arbitration Act. This Court

repelled the aforesaid argument, stating:

“9. Under the general conditions of contract, the “contractor”, in

Clause 1.1.2.3 is defined as meaning an individual, firm,

company, corporation, joint venture or Consortium, whether

incorporated or not. “Bidder” is also defined under Clause

1.1.2.10 as meaning an individual, firm, company, corporation,

joint venture or Consortium which could submit a bid. What is

important to notice is that the contract was signed by the

employer viz. MMRDA and by the contractor under the head

sub-clauses (A) and (B) in which L&T India signed as ‘A’ and

Scomi Engineering Bhd has signed as ‘B’. When we come to

the consortium agreement that is entered into between the

Indian company and the Malaysian company as aforestated, we

find in the definition clause that “Consortium” shall mean L&T

and Scomi Engineering Bhd, acting in collaboration, for the

purpose of this agreement and shall be called “the L&T-SEB”

Consortium “unincorporated”. The contract is defined in SubClause 6 as meaning, “the contract to be entered by the

Consortium with the employer for the execution of the Project”.

Under Sub-Clause 7, “the lead Member of the Consortium” or

“Consortium Leader” shall mean L&T, that is, the Indian

Company. Under Sub-Clause 8, the “Supervisory Board”

(hereinafter referred to as “the SB”) shall mean a Board

constituted under Clause 11 of the GCC. When we come to

Clause 11.2, it is clear that the Members of this Supervisory

Board will consist of four members, two appointed by each

Member. One of the Members nominated by the Consortium

leader and agreed to by all members shall then act as the

Chairman of the Supervisory Board, which is, by Clause 11.5,

to decide on various matters relating to the execution of the

contract. Clause 21.1(g) provides that the Consortium leader

shall lead all arbitration proceedings.

xxx xxx xxx

11. It is important, at this juncture, to refer to an order made by

the High Court of Bombay dated 20-10-2016 [L&T

Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] which, as has

been stated earlier, arises between the self-same parties, under

the same contract. An interim award made by the arbitrators

qua different claims arising under the same contract had made

it clear that the claim could be filed only in the name of the

Consortium and not separately, as was contended by Shri

Jain's client. The preliminary issue framed on this count was

“whether the claimants are entitled to file this claim as Claimant

1 and Claimant 2 or only as the Consortium of L&T and Scomi

Engineering Bhd?” The High Court of Bombay agreed with the

interim award of the arbitrators, and held as follows: (L&T Ltd.

case [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] ,

SCC OnLine Bom para 10)

“10. Considering the terms and conditions of the

contract as well as the decision cited by Mr. Ankhad,

in my opinion, in the facts and circumstances of the

present case, it is not open for the petitioners to rely

upon their independent identities while dealing with

the respondent and that they will have to deal with

the respondent as a Consortium only. Therefore,

there is no infirmity in the impugned order. For the

same reason the present petition as filed would also

not been maintainable. Hence, the same is

dismissed.”

12. Shri Gopal Jain did not dispute the fact that this judgment

was final inter-partes as no appeal has been preferred.

Therefore, to stress the fact that it pertains only to “this claim”

and would therefore, not apply to a different set of claims under

the arbitration clause is not an argument that appeals to us.

13. It is clear, as has been held by the judgment [L&T Ltd v.

MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of

Bombay, and which is binding inter-partes, that it is not open for

the petitioner to rely upon their status as independent

entities while dealing with the respondent and they will have to

deal with the respondent as a Consortium only.

14. This being the case, it is clear that the unincorporated

“association” referred to in Section 2(1)(f)(iii) would be attracted

on the facts of this case and not Section 2(1)(f)(ii) as the

Malaysian body cannot be referred to as an independent entity

following the judgment [L&T Ltd. v. MMRDA, 2016 SCC OnLine

Bom 13348] of the High Court of Bombay.

xxx xxx xxx

18. This being the case, coupled with the fact, as correctly

argued by Shri Divan, that the Indian company is the lead

partner, and that the Supervisory Board constituted under the

consortium agreement makes it clear that the lead partner really

has the determining voice in that it appoints the Chairman of

the said Board (undoubtedly, with the consent of other

members); and the fact that the Consortium's office is in

Wadala, Mumbai as also that the lead member shall lead the

arbitration proceedings, would all point to the fact that the

central management and control of this Consortium appears to

be exercised in India and not in any foreign nation.”

14. This case is distinguishable on facts, inasmuch as a final judgment

between the parties made it clear that it would not be open for the

consortium to rely upon their status as independent entities while dealing

with MMRDA. This being the case, the consortium was held to be an

association of persons falling under Section 2(1)(f)(iii), and that since the

lead member is to lead arbitral proceedings, the central management and

control of the consortium being exercised by Larsen and Toubro in India, it

was held that Section 2(1)(f)(iii) would not be attracted on the facts of that

case.

15. By way of contrast, we have seen how the respondents have

themselves applied to become distributors of Amway products in India as a

sole proprietorship concern under the relevant forms issued by the

appellant, read with the Code of Ethics referred to hereinabove. In Ashok

Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567, this Court

has clearly held that a sole proprietary concern is equated with the

proprietor of the business as follows:

“6. A partnership firm differs from a proprietary concern owned

by an individual. A partnership is governed by the provisions of

the Indian Partnership Act, 1932. Though a partnership is not a

juristic person but Order XXX Rule 1 CPC enables the partners

of a partnership firm to sue or to be sued in the name of the

firm. A proprietary concern is only the business name in which

the proprietor of the business carries on the business. A suit by

or against a proprietary concern is by or against the proprietor

of the business. In the event of the death of the proprietor of a

proprietary concern, it is the legal representatives of the

proprietor who alone can sue or be sued in respect of the

dealings of the proprietary business. The provisions of Rule 10

of Order XXX which make applicable the provisions of Order

XXX to a proprietary concern, enable the proprietor of a

proprietary business to be sued in the business names of his

proprietary concern. The real party who is being sued is the

proprietor of the said business. The said provision does not

have the effect of converting the proprietary business into a

partnership firm. The provisions of Rule 4 of Order XXX have

no application to such a suit as by virtue of Order XXX Rule 10

the other provisions of Order XXX are applicable to a suit

against the proprietor of proprietary business “insofar as the

nature of such case permits”. This means that only those

provisions of Order XXX can be made applicable to proprietary

concern which can be so made applicable keeping in view the

nature of the case.

7. In the present case A.C. Basu, Proprietor of Ashok Transport

Agency, had died before the date of the institution of the suit

and on the date of the institution of the suit, the proprietary

concern was not in existence. Only the legal representatives of

A.C. Basu could be sued with regard to any cause of action

arising against A.C. Basu in connection with the proprietary

business. We find it difficult to understand how the provisions of

Rule 4 Order XXX CPC, could be extended to such a case.”

16. In this view of the matter, the argument that there is no international

flavour to the transaction between the parties has no legs to stand on.

Indeed, an analysis of Section 2(1)(f) would show that whatever be the

transaction between the parties, if it happens to be entered into between

persons, at least one of whom is either a foreign national, or habitually

resident in, any country other than India; or by a body corporate which is

incorporated in any country other than India; or by the Government of a

foreign country, the arbitration becomes an international commercial

arbitration notwithstanding the fact that the individual, body corporate, or

government of a foreign country referred to in Section 2(1)(f) carry on

business in India through a business office in India. This being the case, it

is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator

in the facts of this case.

17. Ms. Arora made an impassioned plea to this Court to use its power

under Article 142 of the Constitution to straightaway appoint an arbitrator,

now that the matter is before this Court. We are afraid we cannot

countenance such a suggestion as the respondents would have to now

follow the drill of Section 11(6) read with Section 11(9) of the Arbitration

Act.

18. The appeal is allowed, and the judgment under appeal is set aside.

…………………………J.

(R.F. Nariman)

…………………………J.

(B.R. Gavai)

New Delhi;

March 04, 2021.

Section 173(5) read with Section311 CrPC for summoning the witnesses along with the concerned documents to adduce their evidence in connection with the secondpost mortem conducted on the body of the deceased = The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is “at any stage of 8 any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercise of judicious discretion.” In the instant case, although the application was filed by the Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 CrPC but it was open for the Ld. Trial Judge as well to exercise suo motu powers in summoning the witnesses whose statements ought to be recorded to subserve the cause of justice, with the object of getting the evidence in aid of a just decision and to uphold the truth.

Under Section 173(5) read with Section 311 of Code of Criminal Procedure, 1973(hereinafter being referred to as “Cr PC”) for summoning the witnesses along with securing the relevant records to meet the ends of justice.

Section 173(5) read with Section311 CrPC for summoning the witnesses along with the concerned documents to adduce their evidence in connection with the secondpost mortem conducted on the body of the deceased =

The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is “at any stage of 8 any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercise of judicious discretion.”

In the instant case, although the application was filed by the Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 CrPC but it was open for the Ld. Trial Judge as well to exercise suo motu powers in summoning the witnesses whose statements ought to be recorded to subserve the cause of justice, with the object of getting the evidence in aid of a just decision and to uphold the truth.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 267 OF 2021

(Arising out of SLP(Crl.) No(s). 8965 of 2018)

V.N. PATIL ….APPELLANT(S)

VERSUS

K. NIRANJAN KUMAR & ORS. ….RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. Respondent nos. 1 to 3 are facing criminal trial in Sessions

Case No. 538 of 2004 for offences under Sections 498A, 304B, 302

read with Section 34 of the Indian Penal Code(hereinafter being

referred to as “IPC”) and under Section 4 and 6 of the Dowry

Prohibition Act, 1961 due to the death of wife of the 1st respondent

under unnatural circumstances on intervening night of 2nd/3rd

April, 2004 at Bangalore.

3. During pendency of the trial, an application was filed by the

Ld. Additional Special Public Prosecutor under Section 173(5) read

with Section 311 of Code of Criminal Procedure, 1973(hereinafter

being referred to as “CrPC”) for summoning the witnesses along

with securing the relevant records to meet the ends of justice. The

Ld. Additional City Civil & Sessions Judge, Bengaluru City, after

detailed discussion and taking note of the scope of Section 311

CrPC allowed the application by its order dated 3rd September,

2016, after assigning cogent reasons in support thereof.

4. This came to be challenged by respondent nos. 1 to 3 in a

petition filed under Section 482 CrPC. The Ld. Judge of the High

Court after recording submissions made by the learned counsel for

the parties, without assigning any reasons, albeit brief, which may

at least facilitate this Court to understand what weighed with the

Judge in setting aside the finding recorded by the Ld. Trial Judge in

its Order dated 3rd September 2016 by its impugned judgment

dated 11th January, 2017.

5. Aggrieved by the order of the High Court impugned dated 11th

January 2017, the appellantcomplainant(father of the deceased)

has approached this Court by way of special leave.

6. The background facts in brief which may be relevant for the

purpose are that the marriage of Keerthi(deceaseddaughter of the

appellant) was solemnized with the 1st respondent on 17th February,

2002. On the intervening night of 2nd/3rd April, 2004, at about 3.30

am, the appellant received a call that her daughter had died. In

connection with her unnatural death, on the basis of a complaint

filed by the appellant (father of the deceased), Crime No. 162/2004

came to be registered at the Sanjay Nagar Police Station, Bangalore

for an offence punishable under Section 302, 498A IPC.

7. During the course of trial, as per the record and evidence, the

examination of all the relativewitnesses and the documentary

evidence produced by the investigating officer, indicates that the

second postmortem on the victim’s body was conducted on 4th

April, 2004 by the team of 5 doctors in J.J. Hospital, Mumbai, in

respect of which the investigating officer/PW 44 had corresponded

under Exhibit P140 to Exhibit P142 seeking for the copy of the

said second postmortem on 13th September, 2005 itself. It further

reveals that the stated documents indicated above were not made

available to the investigating officer during the submission of the

main chargesheet and additional chargesheet. Ld. Trial Court had

permitted to produce the documents by its order dated 30th

October, 2012. Even after Exhibit P142, the original documents of

the stated second postmortem with the other relevant documents

were still with the Mumbai doctors and police and PW 27 Dr.

Bheemappa Havanur who conducted the first post mortem on 3rd

April, 2004 turned hostile. At this stage, application came to be

filed by the Ld. Additional Special Public Prosecutor under Section

173(5) read with Section 311 CrPC for summoning the witnesses

and to examine the Doctor who conducted the second postmortem

to meet the ends of justice.

8. Learned counsel for the respondents made various

submissions in questioning the application filed under Section

173(5) read with Section 311 CrPC when the trial reached the stage

of hearing and contended that the witnesses cited to be summoned

for the purpose of examining them on behalf of the prosecution, are

neither the witnesses examined by the investigating officer during

the course of his investigation, nor cited as the prosecution

witnesses in the final report. What is sought to be brought on

record is the result of the private investigation said to have been

done at the instance of members of the family of the deceased

alone, and not at the instance of the investigating officer, or the

accused. After the prosecution witness PW 27 Dr. Bheemappa

Havanur, who conducted the autopsy on the dead body of the

deceased, was declared hostile, application is said to have been filed

to fill up the gap at the stage of investigation which is not

permissible in law, and also raised objections on the merits of the

matter as to what will be the effect of the second post mortem which

had been conducted on the body of the deceased in J.J. Hospital,

Mumbai.

9. The Ld. Trial Judge, after perusal of record and taking into

consideration the rival contentions of the parties, observed that the

case is registered initially at Sanjay Nagar Police Station,

Bengaluru, under Crime No. 162/2004, which was later on

investigated by the then Cord of Detectives(COD), Bengaluru, and

thereafter the original chargesheet and also additional chargesheet was submitted, in which there is a clear reference on record

documentarily as well as in the deposition of PW 44 who is stated to

be the investigating officer. The record further reveals that the

second post mortem which was got conducted at J.J. Hospital,

Mumbai appears to have been made through the Worli Police,

Mumbai by lodging the complaint there, by the members of the

family of the deceased, wherefor, at the very outset, it is not the

post mortem having made privately, as it is through the Police at

Mumbai.

10. It was further observed that as per Exhibits P136, P140 to

P142, which are available on record that PW44 Investigating

Officer had initiated the correspondence with the Worli Police, as

well with the Doctors of J.J. Hospital, seeking for sending copy of

the second postmortem which clearly indicates that the very

intendment prevailed with PW 44 in corresponding with the Worli

Police, Mumbai and Mumbai Doctors with the Exhibits P136 and

P142 to obtain the said copy of the second post mortem conducted

at the J.J. Hospital, Mumbai, required for investigation by him in

Bengaluru, by considering it as part and parcel of his investigation,

and the second post mortem is not the outcome of the personal

instance of the family members of the deceased, but the relevance

of the second post mortem with the case, which PW44 has deposed

in his chiefexamination itself, more particularly, in connection with

Exhibit P136 and Exhibits P140 to P142.

11. Taking note of the factual matrix of the matter on record, the

Ld. Trial Judge, after assigning cogent reasons, allowed the

application filed under Section 311 CrPC to meet the ends of justice

observing further that no hardship or prejudice would be caused to

the respondents accused, since the said witnesses and documents

intended to be summoned, will certainly be subjected to crossexamination and their testification, as per the provisions of CrPC.

12. The order of the Trial Court was assailed by the respondent

nos. 1 to 3 in Criminal Petition No. 7887 of 2016 under Section 482

CrPC. The High Court has not taken pains to examine the scope

and ambit of Section 311 CrPC, and the reasoning assigned by the

Ld. Trial Judge, and erroneously set aside the order of the Ld. Trial

Judge dated 3rd September, 2016 by its impugned judgment dated

11th January, 2017.

13. After going through the rival submissions and perusal of the

record of the case with reference to the law applicable, in our

considered view, the judgment impugned before us is unsustainable

in law, and we find it difficult to approve it.

14. The scope of Section 311 CrPC which is relevant for the

present purpose is reproduced hereunder:

“311. Power to summon material witness, or examine

person present—Any Court may, at any stage of any

inquiry, trial or other proceeding under this Code, summon

any person as a witness, or examine any person in

attendance, though not summoned as a witness, or recall

and reexamine any person already examined; and the

Court shall summon and examine or recall and reexamine

any such person if his evidence appears to it to be essential

to the just decision of the case.”

15. The object underlying Section 311 CrPC is that there may not

be failure of justice on account of mistake of either party in bringing

the valuable evidence on record or leaving ambiguity in the

statements of the witnesses examined from either side. The

determinative factor is whether it is essential to the just decision of

the case. The significant expression that occurs is “at any stage of

any inquiry or trial or other proceeding under this Code”. It is,

however, to be borne in mind that the discretionary power conferred

under Section 311 CrPC has to be exercised judiciously, as it is

always said “wider the power, greater is the necessity of caution

while exercise of judicious discretion.”

16. The principles related to the exercise of the power under

Section 311 CrPC have been well settled by this Court in Vijay

Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC

136.

“17. Though Section 311 confers vast discretion upon the

court and is expressed in the widest possible terms, the

discretionary power under the said section can be invoked

only for the ends of justice. Discretionary power should be

exercised consistently with the provisions of the Code and

the principles of criminal law. The discretionary power

conferred under Section 311 has to be exercised judicially

for reasons stated by the court and not arbitrarily or

capriciously. Before directing the learned Special Judge to

examine Smt Ruchi Saxena as a court witness, the High

Court did not examine the reasons assigned by the learned

Special Judge as to why it was not necessary to examine

her as a court witness and has given the impugned

direction without assigning any reason.”

17. This principle has been further reiterated in Mannan Shaikh

and Others Vs. State of West Bengal and Another 2014(13) SCC

59 and thereafter in Ratanlal Vs. Prahlad Jat and Others

2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central

Bureau of Investigation 2019(14) SCC 328. The relevant paras of

Swapan Kumar Chatterjee(supra) are as under:

“10. The first part of this section which is permissive gives

purely discretionary authority to the criminal court and

enables it at any stage of inquiry, trial or other proceedings

under the Code to act in one of the three ways, namely, (i)

to summon any person as a witness; or (ii) to examine any

person in attendance, though not summoned as a witness;

or (iii) to recall and reexamine any person already

examined. The second part, which is mandatory, imposes

an obligation on the court (i) to summon and examine or (ii)

to recall and reexamine any such person if his evidence

appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section

311 should be invoked by the court only to meet the ends of

justice. The power is to be exercised only for strong and

valid reasons and it should be exercised with great caution

and circumspection. The court has vide power under this

section to even recall witnesses for reexamination or

further examination, necessary in the interest of justice, but

the same has to be exercised after taking into consideration

the facts and circumstances of each case. The power under

this provision shall not be exercised if the court is of the

view that the application has been filed as an abuse of the

process of law.”

18. The aim of every Court is to discover the truth. Section 311

CrPC is one of many such provisions which strengthen the arms of

a court in its effort to unearth the truth by procedure sanctioned by

law. At the same time, the discretionary power vested under

Section 311 CrPC has to be exercised judiciously for strong and

valid reasons and with caution and circumspection to meet the

ends of justice.

19. Indisputedly, the facts in the instant case are that the

daughter of the appellant died an unnatural death on the

intervening night of 2nd/3rd April, 2004 in Bangalore where she was

living with the respondents who are facing trial under Sections

498A, 304B, 302 read with Section 34 IPC and under Sections 4

and 6 of the Dowry Prohibition Act, 1961 and the trial is at the fag

end of its closure and the case is listed for hearing.

20. At this stage, application came to be filed by Ld. Additional

Special Public Prosecutor under Section 173(5) read with Section

311 CrPC for summoning the witnesses along with the concerned

documents to adduce their evidence in connection with the second

post mortem conducted on the body of the deceased and after

perusal of the record, the factual statement has been recorded by

the Ld. Trial Judge in paragraphs 9 & 10 as follows:

“9. In connection with the same, at the very outset, on

record it could be seen that it is contended that the said

second postmortem is got conducted in J.J. Hospital,

Mumbai. The second postmortem appears to have been

made through the Worli Police, Mumbai by lodging the

complaint thereat by the members of the family of the

deceased, wherefore, at the very outset, it is not the postmortem having got made privately, as it is through the

Police.

10. Notwithstanding as to whether the Worli Police have

further continued the investigation or otherwise or directly

connected to the instant case in hand, it is clear from the

records as per Exhibits P136, P140 to P142 which are

available on record that the PW44/Investigating Officer

had initiated the correspondence with the Worli Police as

well as the Doctors of J.J. Hospital seeking for sending the

copy of the second postmortem, which clearly goes to

indicate that the very intendment prevailed with the PW44/Investigating Officer in corresponding with the said

Worli Police, Mumbai and Mumbai Doctors in accordance

with the Exhibits P136 and P142, reveals that the said

copy of the second postmortem conducted at the J.J.

Hospital, Mumbai, was required for the investigation by him

in Bengaluru, by considering it as the part and parcel of his

investigation.”

21. What had further transpired for summoning the witness along

with the documents in connection with the second post mortem

report has been noticed in paragraph 18 of the judgment of the

Trial Court which is extracted hereunder:

“18. It is also significant to note that, the Doctor by name

Bhimappa Havanur having stated to have conducted the

first postmortem at Bowring Hospital in Bengaluru, has

turned hostile to the prosecution, according to the

prosecution, by giving the two different contradictory and

divergent opinions in connection with the cause of death,

wherefore, now, it is equivalently incumbent upon this

Court to determine and traceout the real cause of death of

the deceased through the medical experts only who have

conducted the postmortem. Therefore, to make out the

reality under the peculiar circumstances of the PW 27

having turned hostile to the prosecution by giving the

contradictory and two divergent opinions, certainly the

efforts being endeavoured to put in by the prosecution to

summon the proposed witnesses along with the documents

certainly need to be taken into consideration in the positive

sense, only with an intention to see that the miscarriage of

justice in any manner is prevented at any point of spell and

juncture.”

22. In the instant case, although the application was filed by the

Ld. Additional Special Public Prosecutor under Section 173(5) read

with Section 311 CrPC but it was open for the Ld. Trial Judge as

well to exercise suo motu powers in summoning the witnesses

whose statements ought to be recorded to subserve the cause of

justice, with the object of getting the evidence in aid of a just

decision and to uphold the truth.

23. We find that the Ld. Judge of the High Court has not adverted

to the factual matrix noticed by the Ld. trial Judge in its Order

dated 3rd September, 2016 and taking note of the submissions

made by the contesting parties summarily, without assigning any

reasons, albeit brief it may be, set aside the judgment of the Ld.

trial Judge. We consider it appropriate to quote what has been

observed by the High Court in its impugned judgment dated 11th

January, 2017 which is as under:

“4. The learned Government Pleader would however seek to

make a weak attempt to justify the apparent illegal

procedure that has been permitted by the trial Court in

allowing the aforesaid application.

Therefore, the petition is summarily allowed. The

order dated 3.9.2016 in S.C. No. 538/2004 on the file of LI

Additional City Civil and Sessions Judge (CCH No. 52),

Bengaluru, is quashed. The court below is directed to

proceed further, in accordance with law.”

24. It is not necessary that in every case, it is required to record

elaborate reasons but since the matters are carried forward to this

Court, the reasons, albiet brief may be, have to be recorded to

facilitate this Court to understand as to what weighed with the Ld.

Judge while passing the impugned judgment, moreover, when the

finding of reversal has been recorded by the Ld. Judge in its

impugned judgment.

25. Consequently, the appeal succeeds and is allowed. The

judgment of the High Court impugned dated 11th January, 2017 is

hereby set aside. Since the trial is pending for almost 16 years by

this time, the Ld. Trial Judge may proceed in compliance of the

Order dated 3rd September, 2016 expeditiously and conclude the

pending trial at the earliest.

26. Pending application(s), if any, stand disposed of.

…………………………………….J.

(INDU MALHOTRA)

…………………………………….J.

(AJAY RASTOGI)

New Delhi

March 04, 2021

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Thursday, March 4, 2021