Appointments & TransfersNews

President appoints Justice Vimla Singh Kapoor, Additional Judge of the Chhattisgarh High Court to be a Judge of the Chhattisgarh High Court, with effect from the date she assumes charge of her office.


Ministry of Law and Justice

[Notification dt. 28-04-2021]

Appointments & TransfersNews

Orders of Resignation

Justice Sharad Kumar Gupta tendered his resignation from the office of Judge, Chhattisgarh High Court with effect from 31-03-2021.


Ministry of Law and Justice

[Notification dt. 28-04-2021]

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Singh Samant, J., dismissed the petition being devoid of merits.

The facts of the case are such that the applicant was charge-sheeted for trial in offence under Sections 13(1)(e) read with 13(2) of Prevention of Corruption Act which was challenged before this Court and was disposed off vide directions to receive the passbooks of the bank accounts, which were under seizure nut will not be able to operate the bank accounts, as there is no specific direction of the Special Court for operation of the accounts. The instant Criminal Revision was filed challenging the legality, propriety and correctness of this order by Special Judge (Prevention of Corruption Act), Raipur, by dismissing the prayer of the applicant to defreeze the bank account, which has been seized by the respondent.

Counsel for the petitioners Mr Kishore Bhaduri and Sunny Agrawal submitted that the prohibitory order of the respondent regarding operation of the bank account is uncalled for in the present situation, hence, it is prayed that the revision petition may be allowed and the impugned order may be set aside and relief be granted to the applicant.

Counsel for the respondent Mr Adil Minhaj submitted that the amount in the bank accounts can be regarded as property under seizure has been acquired unlawfully, cannot be allowed to be disbursed or disposed when the charge sheet has been filed and the prosecution has not come to an end.

The Court relied on judgment State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 wherein it was held as under

“Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in  interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is `property’ within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.”

The Court observed that the money in the bank account may be regarded as a property and the seizure of such property on suspicion that it is connected with commission of offence held as property within the meaning of Section 102 of Criminal Procedure Code i.e. Cr.PC and the police officer also has power to prohibit the operation of such account, if such assets have linkages with the commission of offence.

The Court thus held that there is a clear conclusion of the Investigation Agency against the applicant that he has amassed wealth, acquired assets, which are disproportionate to his income “…and the prosecution against the applicant is under contemplation by the respondent side, therefore, no order can be passed to defreeze the bank accounts, which have been seized from this applicant.”

In view of the above, the instant petition was dismissed and disposed off.[Ramesh Kumar Sharma v. State of Chhattisgarh, 2021 SCC OnLine Chh 902, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

District Collector, Bilaspur vide an Order dayed 18-04-2021 extended the lockdown in Bilaspur District where the High Court is situated, till 26-04-2021.

In light of the aforesaid order dated 18-04-2021 of the District Collector, Bilaspur and in compliance of Order No. 73(Mis)/II-14-1/2021, dated 12.04.2021 of this Registry, the limited functioning of the High Court of Chhattisgarh shall stand extended till 26-04-2021.

In view of the above, the cases already listed in the cause list for 22.04.2021 shall be taken up on 27.04.2021.

The cases which are extremely urgent in nature may be mentioned before the Registrar (Judicial)/ Additional Registrar (Judicial) as per the practice prevalent in the High Court during holidays.

Link to the NOTIFICATION.


Chhattisgarh High Court

Notification dt. 19-04-2021

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Singh Samant J. allowed the appeal and directed to take up the proceeding for conciliation under Section 18 (2) of the Act, 2006.

The facts of the case are such that respondent 4 i.e. Core Fab Projects Pvt. Ltd. moved an application under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (in short ‘the Act, 2006’), before the Facilitation Council i.e. respondent 3 which was proceeded with and notice was issued to the petitioner for appearance in that proceeding. The instant petition was filed under Article 227 of the Constitution of India praying to quash the proceeding on application for reference before respondent 3 on grounds that the proceeding so initiated is against the provisions of Section 18 of the Act, 2006.

Counsel for the petitioners Mr Amit Soni submitted that the conciliation proceeding under Section 18 (2) of the Act, 2006 is a must, therefore, it is prayed that respondent 3 be directed to comply with Section 18 (2) of the Act, 2006, before proceeding to decide the reference.

Counsel for the respondents Mr B P Banjare and P R Patankar submitted that respondent 3 has followed the procedure as provided under the Act, 2006. Section 18 (5) of the Act, 2006 provides time within which the matter has to be decided and that time limit has already crossed.

The Court observed that the words in Section 18 (2) of the Act, 2006 give a mandate that the Council shall itself conduct conciliation in the matter or may seek assistance of any institution or center providing alternative dispute resolution services. The only word used in the provision is ‘conciliation’. Conciliation is procedure adopted for alternate dispute resolution in which neutral person proposes the parties in dispute to come to agreement for resolving the dispute between them, further there are specific provisions for conciliation in Arbitration and Conciliation Act, 1996. Therefore, the term ‘compromise’ has different meaning than term ‘conciliation’. In a compromise, both the parties in a dispute strictly negotiate with each other, whereas, in conciliation proceeding one neutral person is engaged in confidential manner to bring about the settlement of dispute between the parties and granted opportunity for compromise itself would not be sufficient.

The Court further observed that the parties were given opportunity to compromise and negotiate for terms and parties failed in that, subsequent to which, the proceeding under Section 18 (2) of the Act, 2006 has been closed and Facilitation Council has ordered for proceeding under Section 18 (3) of the Act. The Court further observed that the proceeding under Section 18 (2) of the Act, 2006 is still not over as the conciliation proceeding has not taken place, therefore, it is held that respondent 3 has failed to exercise its authority under Section 18 (2) of the Act, either by involving itself or by handing over the matter to any other institutions or centers providing alternate dispute resolution services.
The Court thus held “the order of the respondent 3 for proceeding under Section 18 (3) of the Act is erroneous and illegal regarding, in which interference is required for by this petition.”

In view of the above, petition was disposed off.[Sew Infrastructure Limited v. State of Chhattisgarh, 2021 SCC OnLine Chh 905, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant J. dismissed the revision petitions being devoid of merit.

The facts of the case are such that the petitioners are directors of a company named H.B.N. Dairy & Allied Limited whose business is to seek investment from investors in the business of the company and part of the profit was assured to the investors. Due to irregularities being found, SEBI directed to discontinue the services and to make repayments to the investors. The charges have been framed against the applicants for commission of the offence under Section 420, 409 of the Indian Penal Code and Section 3, 4 & 5 of the Prize Chits Money Circulation Schemes (Banning) Act, 1978 and Section 10 of Protection of Depositors Interest Act, 2005. An application under Section 239 of Criminal Procedure Code i.e. Cr.P.C. was filed seeking discharge from the charges which came to be dismissed. Assailing this order, instant revision petitions were filed.

Counsel for the petitioners Mr. Bhashkar Payashi, Vibhash Tiwari and Rohitashwa Singh submitted that the framing of charges against the applicants in all three cases is erroneous and illegal, as there had been no prima-facie case present against these applicants for framing of such charges. The company has acted in accordance with the direction of SEBI and repaid the amount to various investors in Chhattisgarh. Therefore, the applicants’ company did not have any dishonest intention. Because of the registration of FIR, the applicants’ company is now unable to dispose of its property, which has become hindrance in making repayment to the investors.

Counsel for the respondents Mr. Adil Minhaj submitted that material in the charge-sheet in all three cases contains evidence to show that the applicants had no intention to make any refund to the investors/depositors, therefore, intention of the applicants was fraudulent from the very beginning.

The Court observed that it has been found that the applicants are directors of that company, who have given inducement to numerous persons regarding their fraudulent schemes and taken deposits and none of them have been paid the refund. On this basis charge-sheets have been filed. The applicants have been unable to establish that by any reason present, the applicants’ company, which was Non-Banking Company, had any authority to take such collections of money from the public. The order of SEBI is also not in favour of the applicants’ company. Hence, the allegations present regarding dishonest intention of the applicants cannot be discarded unless and until these applicants establish in the trial that their intention were bonafide.

The Court thus held “it can be said that the activity of the applicants’ company appears to be covered under Section 2 (c) of the Act, 1978 and therefore, promotion of such scheme, which is banned under Section 3 of the Act, 1978 is punishable under Section 4 of the same Act, 1978, regarding which, there is sufficient evidence present for framing of charge against the applicants.”[Amandeep Singh Saran v. State of Chhattisgarh, 2021 SCC OnLine Chh 901, decided on 07-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

COVID-19 Surge

  • In view of the upsurge in the COVID-19 Cases, Chhattisgarh High Court has suspended the normal functioning of the High Court with minimum support staff to be deputed on a rotational basis to deal with extremely urgent cases as to be decided either by the Chief Justice or the Judge nominated by the Chief Justice.
  • No Filing of fresh cases will be allowed.
  • The above period will not be counted for the working out limitation period.
  • Officer/Officials of the High Court shall work from home during the above period.
  • Registrar General shall call for the staff as may be required for the skeletal functioning of the High Court.
  • The Offices/Officials will not leave the Headquarter and will report to duty without any lapse.
  • If Collector and District Magistrate extends lockdown in Bilaspur District beyond the aforesaid period then the present arrangements regarding the functioning of High Court will be continued.

Link to the notice.


 

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu, JJ. sets aside the impugned order and allowed the appeal.

Background

The facts of the case are such that a combined notification (Geology and Mining Department and Panchayat & Rural Development Department and Public Works Department i.e. PWD) governed by 2008 Rules, 2011 Rules and 2016 Rules respectively was issued for filling up the posts of Draughtsman/Assistant Draughtsman (Civil) specifying the eligibility conditions and prescribed qualifications in terms of the relevant rules. The test was conducted, and a provisional list of successful candidates was declared when it was noticed that the selected candidates were not having the ‘prescribed qualifications’ under the Rules and the Advertisement, but were having much higher qualification of Degree or Diploma in Civil Engineering and such other subjects. A representation to the Board followed by a petition was filed but to no avail. It was held that the relevant Rules and Advertisement did not stipulate any higher qualifications of Diploma, Degree or Post Graduation in the subject concerned, but for stipulating ITI, it was decided that the persons with higher qualifications would not be considered and included in the list of eligible candidates. But nothing was mentioned as to why the same analogy was not applicable in the case of the PWD. The learned Single Judge held that the higher qualification of Degree/Post Graduate Degree in Civil Engineering would presuppose the lower qualification as per advertisement, in view of the law declared by the Apex Court in Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596. The answer given in the ‘positive’ by the learned Single Judge, dismissing the writ petition challenging the proceedings is put to challenge by the instant appeal.

Submissions

Counsel for the appellants Mr Prateek Sharma submitted that having directed the Government to give effect to the undertaking that they would modify the select list in respect of the Mining & Geology Department, by excluding the higher qualified candidates and confining it to the candidates having the specific qualifications as prescribed in the Rules and notified in the Advertisement, the learned Single Judge went wrong in not extending the said benefit in the case of the PWD involving exactly similar Rules and the similar qualifications as given in the advertisement, which in fact has resulted in differential treatment. This has resulted in patent arbitrariness and discrimination on the parts of the State, violating Article 14 of Constitution of India.

Counsel for the respondents submitted that the qualification prescribed in the Advertisement is only the ‘minimum qualification’ and that there is no bar either in the Rules or in the Advertisement that the persons with higher qualifications will not be considered. It was further submitted that the Rules do not place any bar in selecting candidates with higher qualification and that it is sustainable in view of the law declared by the Supreme Court in Jyoti K.K. (supra) that possession of higher qualification pre-supposes lower qualification. It was also submitted that there is absolutely no merit in the appeal as all the candidates placed in the list are candidates who have proved their merit by virtue of their qualification and performance.

 Scope of the verdict in Jyoti K.K (supra)

The Supreme Court in Jyoti KK. (supra) held that if the candidate has acquired the higher qualification in the same faculty, such qualification can certainly be stated to presuppose acquisition of the lower qualification prescribed for the post.

The Court observed that the decision was rendered with reference to a statutory rule, particularly Rule 10(a) (ii) of the 1956 Rules which enabled reckoning of higher qualification which presupposes the acquisition of lower qualification prescribed for the post as sufficient for appointment to the said post.

The matter came up for consideration in Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404 wherein it was held that the verdict passed by the Apex Court in Jyoti K.K. (supra) was on the basis of a specific enabling rule i.e. Rule 10(a) (ii) of the 1956 Rules, where the higher qualification presupposed acquisition of lower qualification and in the absence of any statutory rule in this regard, such inference cannot be drawn.

Observations

The Court observed that no rule in the ‘2016 Rules’ can be referred enabling to reckon the ‘higher qualification’ as well, which presupposes the acquisition of lower qualification for appointment to the post of Assistant Draughtsman in the PWD. It was observed that because of the absence of any such enabling rule to reckon the higher qualification presupposing the lower qualification for recruitment in the Mining & Geology Department, the Government has already taken a decision to modify the list by excluding the candidates having higher qualifications and to confine the same only to the specific qualification as contained in the Rules/Notification. Despite the fact that the rule position is exactly same in the PWD (as in the case of Mining & Geology Department), such a course was not pursued by the Respondent/ Government which results in blatant differential treatment.

Decision

In the above facts and circumstances, we do not find any justification for the Respondents to have provided a differential treatment for recruitment to the post of Assistant Draughtsman in the ‘PWD’, unlike the course sought to be pursued in respect of the ‘Mining & Geology Department’, having exactly similar rules governing the eligibility conditions/qualifications as notified in the advertisement.

In view of the above, appeal was allowed and impugned decision was set aside.[Praveen Kumar Rajak v. State of Chhattisgarh,  2021 SCC OnLine Chh 648, decided on 18-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

President appoints Naresh Kumar Chandravanshi and Narendra Kumar Vyas to be Additional Judges of the Chhattisgarh High Court, for a period of 2 years.


About:

Narendra Kumar Vyas, B.Sc., L.L.B. had enrolled as Advocate on 16.03.1996. He has over 23 years of experience. He has practiced in Labour Court, Industrial Court, District Court, Bilaspur, Raigarh, Janjgeer-Champa, EPF Tribunal, Central Government Industrial Tribunal cum Labour Court during period 1996 to 2002 and after that has been practicing in the Chhattisgarh High Court till date.

Naresh Kumar Chandravanshi, B.A., LL.B., joined the Judicial Service on 11.07.1990. As a Judicial Officer, he served as Additional District & Sessions Judge, Sakti, Additional Registrar, High Court of Chhattisgarh, District & Sessions Judge, Surguja, Ambikapur, Legal Advisor to Governor of Chhattisgarh and presently he is working as Principal Secretary, Law & Legislative Affairs Department, Govt. of Chhattisgarh, Raipur.


Ministry of Law and Justice

[Notification dt. 19-03-2021]

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant J., allowed the petition and quashed the impugned order.

The facts of the case are such that the marriage of petitioner 1 with petitioner 2 was solemnized on 17-02-2016. Because of differences between them, they started living separately on 10-01-2018. It was almost after two years; application under Section 13 (1B) of the Hindu Marriage Act, 1955 was filed on 28-01-2021. The learned Family Court directed for counselling of the parties, which failed, regarding pursuant to which the case was posted for after six months in accordance with Section 13B (2) of the Act, 1955 which provides for cooling period. The petitioners then filed an application for waiving off the cooling period, which was dismissed by the impugned order. The instant writ petition was filed under Article 227 of the Constitution of India, for quashing the impugned order.

Counsel for the petitioners submitted that application under Section 13 (1B) of the Act, 1955, praying for decree of divorce on mutual consent has been filed jointly. It was further submitted that the impugned order has been erroneously passed in light of the law laid down in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.

In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 it was laid down

“19. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

(i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

(ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

(iv) the waiting period will only prolong their agony.

The Court observed that the facts present in this case disclose that the petitioners have resided more than one year separately, therefore, the requirement under Section 13B (1) of the Act, 1955, has completed. Thereafter, the petition under Section 13 (1B) of the Act, 1955 has been filed on 28-01-2021, therefore, a further requirement of cooling period of six months under Section 13B(2) of the Act, 1955, has also been completed. Further, counselling procedure is also over, which has failed.

The Court thus held that, under these circumstances, and as per the guidelines laid down by the Supreme Court in Amardeep Singh (Supra), it was a fit case, in which, the petitioners should have been benefited with the relief as they had prayed for.

In view of the above, impugned order was set aside and petition was allowed.[Raju Kumar In re, 2021 SCC OnLine Chh 564, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition and held that forfeiture of earned remission of a convict is violative of fundamental rights under Article 21 of the Constitution of India.

The facts of the case are such that the petitioner is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of Penal Code, 1860. It was alleged that petitioner was found in possession of prohibited article, a prison offence under Section 45 of the Prisons Act, 1894, the Octagon Officer submitted his report to the Jailor, made a recommendation to the Jail Superintendent which was then simply approved by the Jail Superintendent on the same date and as such, the order of forfeiture of 10 days of petitioner’s earned remission was passed. The petitioner has assailed the said order on the ground that such forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

Counsel for the petitioner submitted that remission forfeited by the Jail Superintendent on account of a prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner’s fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

Counsel for the respondents submitted that the impugned order and submit that the instant petition deserves to be dismissed.

Amicus curiae relied on judgment Anand Rao v. Inspector General of Prisons, 1982 MPLJ 73 (DB) and submitted that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner’s earned remission could not have been forfeited.

The Court relied on judgment Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 and observed, it is quite vivid that in the instant case, the enquiry has only been made by the Octagon Officer and the report has been submitted to the Jailor, who has then recommended forfeiture of petitioner’s 10 days of earned remission to the Jail Superintendent, but without giving an opportunity to the petitioner to explain his conduct, penalty of forfeiture of earned remission has been imposed upon him by the Jail Superintendent as he agreed to the recommendation made by the Jailor for forfeiting 10 days of remission earned by the petitioner.

The Court thus held that no such opportunity has been granted to the petitioner to explain his conduct and even otherwise, no enquiry was conducted by the Jail Superintendent while forfeiting petitioner’s earned remission as pursuant to the recommendation made by the Jailor, petitioner’s 10 days’ earned remission has been forfeited, which is violative of petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India.

In view of the above, petition was allowed.[Suraj Gupta v. State of Chhattisgarh, 2021 SCC OnLine Chh 448, decided on 26-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J.,  allowed the appeal and set aside the impugned orders of the First Appellate Court being unreasonable.

The facts of the case are such that the suit accommodation was of one Abdul Wahid Khan who sold the property to plaintiffs vide sale deed and got themselves registered in the Municipal Corporation Assessment Register. The said accommodation was rented as a shop to defendant 1 who was supposed to pay the monthly rent to the plaintiff after the sale which he failed to do upon which notice for eviction was sent to him. Thereafter a suit was filed under Section 12(1) (a), (c), (f) and (g) of the Chhattisgarh Accommodation Control Act, 1961 by the plaintiffs opposing which defendant stated that the plaintiff has no right over the title of the property under Section 43 and Section 64 of the Wakf Act, 1995 as it is a wakf property and Abdul Rehman was only a muttawali. The trial court granted a decree for eviction in favour of the plaintiffs being aggrieved by which civil appeal was preferred against the plaintiffs. The first appellate Court allowed both the appeals and dismissed the suit of the plaintiffs holding that the suit property is wakf property; therefore, the jurisdiction of the Civil Court is barred by Section 85 of the Wakf Act. Assailing this order, present second appeal was filed.

Issue 1: Rules of Evidence vis a vis Waqf Deed

Counsel for the appellants submitted that the first appellate Court has clearly erred in holding that the suit property is wakf property by relying upon Exhibit D/10 which is the copy of the alleged wakf deed as it is not primary evidence, being a copy made from the copy of the original document, and no foundation was laid for leading secondary evidence and hence Section 90 of the Evidence Act would not be applicable as for its applicability, the foundation has to be laid to lead secondary evidence.

The Court relied on judgment Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357 wherein it was held that

“17. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts, is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old: but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act, 1872 by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.”

The Court observed that Section 65 of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of documents under the seven exceptional cases in which secondary evidence is admissible. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for n the section.

The Court thus held that the first appellate Court is absolutely unjustified in holding that the suit property is a wakf property, as such, the suit property has not been proved to be wakf property in absence of foundation for leading secondary evidence under Section 65 of the Evidence Act.

Issue 2: Jurisdiction of the Civil Court vis a vis Section 85 of the Waqf Act

It was further submitted that the instant suit was filed before the trial court on 06-10-1995 and the Wakf Act came into force w.e.f. 22-11-1995 and though defendant 2 was impleaded as a party/defendant in the suit vide order, since the suit had already been instituted prior to coming into force of the Wakf Act, 1995, therefore, by virtue of Section 7(5) of the Wakf Act, 1995, the suit is not barred by Section 85 of the Wakf Act.

Counsel for the respondents submitted that with regard to the question as to whether the suit property is a wakf property has to be decided only by the Wakf Tribunal after coming into force of the Wakf Act w.e.f. 22/11/1995, as such, the jurisdiction of the Civil Court is absolutely barred by virtue of Section 85 of the Wakf Act. It was further submitted that even if it is held that Section 85 of the Wakf Act, 1995 is not applicable, then also by virtue of Section 55C of the Wakf Act, 1954, the jurisdiction of the Civil Court is barred by virtue of Section 6A of the Madhya Pradesh Wakf (Amendment) Act, 1994.

The Court relied on judgment Taraknath v. Sushil Chandra Dey, (1996) 4 SCC 697, B.P. Pathak v. Dr Riyazuddin Haji Mohammad Ali, 1975 SCC OnLine MP 50, Sardarilal v. Narayanlal, 1979 SCC OnLine MP 25 and Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and observed that in the light of the provisions contained in Section 109 of the Transfer of Property Act i.e. TP Act and the principles of law laid down by their Lordships of the Supreme Court and the M.P. High Court in the aforecited judgments, it is quite vivid that Section 109 of the TP Act creates a statutory attornment and by virtue of the transfer of leased property, transferee ipso facto acquires all the rights of the lessor, and a new relationship is created between the transferee and the lessee.

Issue 3: Meaning of the term ‘if he is the owner thereof’

 The Court relied on judgments Apollo Zipper India Ltd. v. W. Newman and Company, (2018) 6 SCC 744 and observed the term ‘if he is the owner thereof’ used in Section 12(1) (f) of the Act of 1961 to in an eviction suit filed by the landlord against the tenant under the rent laws when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit. It was further held that the burden of proving the ownership in an eviction suit is not the same like a title suit.

The Court thus held that

Reverting to the facts of the present case in the light of the aforesaid meaning and definition of the term ‘if he is the owner thereof’ used in Section 12(1)(f) of the Act of 1961 and the principles of law enunciated by the Supreme Court and the M.P. High Court in that behalf, it is quite vivid that in the instant case, the plaintiffs purchased the suit property from the erstwhile owner Abdul Wahid Khan vide Exhibits P1(c) and P3(c) and thereafter became the owner of the suit property and also the landlords of defendant No. 1. Plaintiffs have clearly stated that they have no other alternative suitable accommodation in the township of Bilaspur and the suit accommodation is required bonafidely for starting his business, though a lengthy cross-examination has been made but nothing has been brought out to demonstrate that either their need of the suit accommodation is not bona fide or they have any other alternative suit accommodation in the township of Bilaspur to fulfill their bona fide need. As such, the plaintiffs have successfully proved the fact that the suit accommodation has admittedly been let out by the erstwhile owner Abdul Wahid Khan for non residential purpose to the tenant/defendant No. 1 and plaintiffs needs the suit accommodation for starting their business and he has no other alternative accommodation for carrying out their business in the township of Bilaspur, therefore, the ground under Section 12(1) (f) of the Act of 1961 is established. However, I do not find any ground established under Section 12(1) (c) and (g) for evicting the defendant 1 from the suit accommodation.”

In view of the above, appeals were allowed and impugned judgment was set aside.[Jaipal Choudhary v. Chhattisgarh Waqf Board, 2020 SCC OnLine Chh 1179, decided on 14-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Chhattisgarh High Court: Gautam Chourdiya, J., upheld the decision of the trial court in a matter with regard to Section 379 Penal Code, 1860.

The present appeal was filed under Section 374(2) of Criminal Procedure Code, 1973 challenging the legality, validity and propriety of the Judgment passed by the Additional Sessions Judge, whereby the appellant stands convicted under Section 379 of the Penal Code, 1860.

Complainant was working as a Secretary at Gram Panchayat and on the same day after the meeting, he went to the bank and withdrew a sum of Rs 12, 250. Thereafter, while he was returning home, on the way accused and co-accused met him and all of them together went to have mutton and consumed liquor.

From there, they reached the place near nursery where they stopped the motorcycle and both the accused started quarrelling with the complainant and after threatening him of life, assaulted upon him by stone and committed marpeet with him, as a result of which sustained injuries on his body and became unconscious.

After the above incident, accused and co-accused looted the amount of Rs 12,250 from complainant’s possession and fled from there.

Complainant lodged FIR against the accused and co-accused. Accused was arrested and achrge sheet was filed against the accused persons under Sections 307, 394 read with 34 and 397 of IPC.

Trial Court acquitted the co-accused of the said offence and convicted and sentenced the accused.

Counsel for the appellant submitted that the appellant had been falsely implicated in the case. No witness had seen the incident. Complainant lodged the FIR after the delay of 2 days. Hence the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the charges.

Bench held that in the totality of facts and circumstances of the present case, it stands proved beyond all reasonable doubt that it is the accused who looted complainant’s money. No explanation was given by the accused regarding the seizure of money from him and he did not claim anywhere in his statement that the said amount belonged to him.

It is a well settled principle of law that statements of police officers cannot be discarded or looked with suspicion merely because they are involved in the investigation.

If their statements are found free from the suspicion of falsity and have a ring of truth, they can safely be relied upon.

In the instant case, defence did not allege that the investigating officer was in any way inimical to the accused or was having any ill-will against him.

With regard to the delay in lodging FIR, the same happened due to the complainant was admitted in the hospital in an unconscious condition.

In view of the above-stated, High Court opined that conviction of the appellant under Section 379 IPC awarded by the trial court was just and proper warranting not interference by the Court.

The appeal being without any substance was liable to be dismissed. [Raju v. State of Chhattisgarh, 2020 SCC OnLine Chh 433, decided on 19-10-2020]

Appointments & TransfersNews

Supreme Court Collegium approves appointment of 3 Additional Judges of Chhattisgarh High Court as Permanent Judges of the Court.

Following are the Judges:

  • Justice Parth Prateem Sahu
  • Justice Gautam Chourdiya
  • Justice Rajani Dubey

Supreme Court Collegium

[Statement dt. 06-04-2020]

COVID 19Hot Off The PressNews

Chief Justice of the Chhattisgarh High Court expressed his desire to give some contribution on behalf of Judiciary of the State of Chhattisgarh to the noble cause of dealing with any kind of emergency or distress situation, therefore, all the Judges, Registry Officers and employees of High Court and all the Judicial officers and employees of Sub-ordinate Judiciary of the State of Chhattisgarh are requested to donate one day’s salary to the CM’s Relief Fund for Corona.

Contribution will, however, be on voluntary basis, therefore, those Officers/Officials of High Court who do not wish to contribute may intimate Accounts Officer, High Court of Chhattisgarh.

To read the Circular, please click here:

CIRCULAR


Chhattisgarh High Court

Appointments & TransfersNews

In exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India, the President is pleased to appoint the following:

(i) Justice Sharad Kumar Gupta,

(ii) Justice Ram Prasanna Sharma and

(iii) Justice Arvind Singh Chandel,

Additional Judges of the Chhattisgarh High Court, to be Judges of the Chhattisgarh High Court with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 28-08-2019]

Appointments & TransfersNews

Proposal for appointment of following three Additional Judges of the Chhattisgarh High Court, as Permanent Judges of that High Court:

1. Justice Sharad Kumar Gupta,
2. Justice Ram Prasanna Sharma, and
3. Justice Arvind Singh Chandel

Having taken into consideration all relevant factors including the above-mentioned report of the Chief Justice of the Chhattisgarh High Court, the Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. resolves to reiterate its recommendation dated 8-04-2019 for the appointment of Justices (1) Sharad Kumar Gupta, (2) Ram Prasanna Sharma, and (3) Arvind Singh Chandel, Additional Judges as Permanent Judges of the Chhattisgarh High Court.


[Collegium Resolution dt. 31-07-2019]

Supreme Court of India

Appointments & TransfersNews

President appointed Justice Parappillil Ramakrishnan Nair Ramachandra Menon, Judge of the Kerala High Court, to be the Chief Justice of the Chhattisgarh High Court with effect from the date he assumes charge of his office.


[Order dt. 30-04-2019]

Ministry of Law and Justice

Appointments & TransfersNews

Appointment of Justice P.R. Ramachandra Menon, Judge, Kerala High Court as Chief Justice in Chhattisgarh High Court.

Collegium comprising of Ranjana Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ., recommends the appointment of Justice P.R. Ramachandra Menon who is the senior-most Judge from Kerala High Court and has been functioning there since his elevation as Judge of that High Court. Having regard to all relevant factors, the Collegium finds Justice P.R. Ramachandra Menon suitable in all respects for being appointed as Chief Justice of the Chhattisgarh High Court. The Collegium resolves to recommend accordingly.

While making the above recommendation, the Collegium is conscious of the fact that consequent upon the proposed appointment, there will be two Chief Justices from Kerala High Court.


[Dated: 8-04-2019]

Collegium Resolutions

Supreme Court of India

Appointments & TransfersNews

Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. resolves to recommend that,

Justices (1) Hitesh Kumar Sarma, and (2) Mir Alfaz Ali, Additional Judges, be appointed as Permanent Judges of the Gauhati High Court against the existing vacancies.

Justices (1) Bimlendu Bhushan Mangalmurti, and (2) Anil Kumar Choudhary, Additional Judges, be appointed as Permanent Judges of the Jharkhand High Court against the existing vacancies.

Justices (1) Sharad Kumar Gupta, (2) Ram Prasanna Sharma, and (3) Arvind Singh Chandel, Additional Judges, be appointed as Permanent Judges of the Chhattisgarh High Court against the existing vacancies.


[Dated: 08-04-2019]

Collegium Resolutions