Case BriefsSupreme Court

Supreme Court: While deciding about a century-old land dispute, the Division Bench of Hemant Gupta and V. Ramasubramanian*, JJ., upheld the impugned decision of the Allahabad High Court.

The Court held that since all the three brothers were alive when the Civil Court passed the partition decree, the Consolidation authorities were well within their powers—considering the subsequent death of two brothers—to hold that the shares of the brother who died issueless should be equally distributed among heirs of his two brothers.

Litigation History

The instant appeal was filed to assail the outcome of the proceedings under Section 9A (2) of the U.P. Consolidation of Holdings Act, 1953.

The common ancestor of both the parties was one Gajadhar Misra, who had three sons namely Sita Ram, Ramesar, and Jagesar. Sita Ram died issueless. Ramesar had a son named Bhagauti.

In the year 1928, Bhagauti filed a suit for partition before the Additional Civil Court. However, by consent of the parties, the dispute was referred to arbitration and the suit was decreed in terms of the arbitration award. In 1944, the said decree was challenged by Bhagauti claiming that the decree was collusive and not binding, which was dismissed by the Trial Court and dismissal was further confirmed by the Appellate Court.

Evidently, the mutation in the revenue records took place in 1952, and thereafter objections were filed by both parties under Section 9 of the U.P Consolidation of Holdings Act, 1953. The rival contentions revolved around the validity of the partition decree and dismissal of the subsequent suit of 1944.

The Consolidation officer passed an Order dated 04-05-1973, holding that the share of Ramesar got separated in the partition that took place in 1929 and that the shares of Jagesar and Sita Ram were held jointly and therefore, upon the death of Sita Ram without any issues, his share would have gone to Jagesar. Consequently, the consolidation Officer held that heirs of Ramesar will get only 1/3rd share and that of Jagesar will get 2/3rd share.

The order of the Consolidation Officer was assailed before the Assistant Settlement Officer who dismissed the matter. In revision, the Deputy Director of Consolidation held that the preliminary decree for partition granted in the suit of the year 1929 was never given effect. Noting that there was no evidence to show who among the two namely, Sita Ram and Ramesar died first, the revisional Authority held that both the branches of Ramesar and Jagesar were entitled to half share each.

The decision of the Revisional Authority was upheld by the Allahabad High Court in appeal.

Issue in Question

The appellants contended that the authorities under the Consolidation of Holdings Act cannot go beyond the decree passed by the Civil Court and that a preliminary decree for partition attains finality as regards the shares to which the parties are held entitled, even if no final decree has been passed resulting in the actual division by metes and bounds.

The appellants contended that since the contention that the preliminary decree of 1929 was collusive already stood rejected in 1944, the authorities under the Consolidation Act were obliged to give effect to the preliminary decree for partition.

Factual Analysis

The Court noted that at the time when the suit for partition of the year 1929 was decreed based on an arbitration award, all the three brothers namely Sita Ram, Ramesar, and Jagesar were alive and they all were held entitled to 1/3rd share each. It was only subsequently that Sita Ram died issueless. Further, none of the parties have any clue as to the exact date of death of Sita Ram or Ramesar to determine who predeceased whom.

Rejecting the claim of the branch of Jagesar that Ramesar predeceased Sita Ram, therefore, Sita Ram’s 1/3rd shares came to Jagesar by survivorship, the Court observed that there were no categorical findings with regard to who predeceased whom even in the judgment passed in Suit 1944. The Court stated,

“To put it in simple terms, Jagesar’s branch would be entitled to take Sita Ram’s 1/3rd share only if it is established that Ramesar had predeceased Sita Ram.”

Hence, the Court held that the revisional authority under the Consolidation Act had not gone beyond the Civil Court’s decree for partition since at the time of partition all the three brothers were alive.

The authorities under the Consolidation Act were confronted with two questions, namely,

(i) whether Sita Ram or Ramesar died first; and

(ii) whether Sita Ram’s 1/3rd share would go to Jagesar by way of survivorship if he had died after Ramesar.

The Court noted that the answer to the aforementioned questions did not depend upon the partition decree. Therefore, the only ground of attack to the order of the Deputy Director of Consolidation cannot be sustained. The Court opined that though the Deputy Director of Consolidation did not articulate his discussion on the issue with clarity, the same will not make his order vulnerable.

Conclusion

Hence, the Court concluded that the Consolidation authorities did not go beyond the Civil Court’s decree. Upholding the impugned decision of the High Court, the Court held that since there was no evidence regarding the dates of death, the Deputy Director of Consolidation rightly found it equitable to distribute Sita Ram’s 1/3rd share equally between the branches of Ramesar and Jagesar.

The instant appeal was dismissed.

[Sarju Mishra v. Jangi, 2022 SCC OnLine SC 873, decided on 13-07-2022]


*Judgement by: Justice V. Ramasubramanian

Advocates who appeared in this case :

Senior Advocate S. R. Singh counsel, Advocate, for the Appellants;


*Kamini Sharma, Editorial Assistant has reported this brief

Case BriefsSupreme Court

Supreme Court: The bench of Hemant Gupta and V. Ramasubramanian*, JJ has lucidly explained the law on the jurisdiction in case of disputes relating to execution and registration of deeds and documents under the Registration Act, 1908.

Three steps for Registration of a document

  • Execution of the document, by the executant signing or affixing his left hand thumb impression: This step may be challenged in a suit for declaration that the registered document is null and void, either on the ground that the executant did not have a valid title to pass on or on the ground that what was found in the document was not the signature of the executant or on the ground that the signature of the executant was obtained by fraud, coercion etc.
  • Presenting the document for registration and admitting to the Registering Authority the execution of such document: This may also be challenged on the very same grounds as in the First step.
  • Registration of the document: This step is procedural in nature where the Registering Authority is the lead actor.

Jurisdiction of Civil Court versus Writ Court

The objections to the first and second of the aforesaid three steps are substantial and they strike at the very root of creation of the document.

“A challenge to the very execution of a document, is a challenge to its very DNA and any defect or illegality on the execution, is congenital in nature. Therefore, such a challenge, by its very nature, has to be made only before the civil court and certainly not before the writ court.”

If a civil court finds that the sale by a power agent was unauthorised, then the question whether the Registering Officer performed his duties properly or not, would lose its significance. An attack on the authority of the executant of a document, is not to be mixed with the attack on the authority of the Registering Officer to register the document. The distinction between the execution of a document and the registration of the document is to be borne in mind while dealing with these questions.

To put it more clearly, if a party questions the very execution of a document or the right and title of a person to execute a document and present it for registration, his remedy will only be to go to the civil court. But where a party questions only the failure of the Registering Authority to perform his statutory duties in the course of the third step, it cannot be said that the jurisdiction of the High Court under Article 226 stands completely ousted.

This is for the reason that the writ jurisdiction of the High Court is to ensure that statutory authorities perform their duties within the bounds of law. When a High Court, in exercise of its jurisdiction under Article 226 finds that there was utter failure on the part of the Registering Authority to stick to the mandate of law, the Court merely cancels the act of registration, but does not declare the very execution of the document to be null and void.

“A declaration that a document is null and void, is exclusively within the domain of the civil court, but it does not mean that the High Court cannot examine the question whether or not the Registering Authority performed his statutory duties in the manner prescribed by law.

Examining whether the Registering Authority did something in the manner required by law or otherwise, is certainly within the jurisdiction of the High Court under Article 226. However, it is needless to say that the High Courts may refuse to exercise jurisdiction in cases where the violations of procedure on the part of the Registering Authority are not gross or the violations do not shock the conscience of the Court.

“Lack of jurisdiction is completely different from a refusal to exercise jurisdiction.”

[Asset Reconstruction Company (India) Limited v. SP Velayutham, 2022 SCC OnLine SC 544, decided on 04.05.2022]


*Judgment by: Justice V. Ramasubramanian

Counsels

For appellant: Senior Advocates Guru Krishna Kumar and Nakul Devan,

For respondents: Senior Advocates Shyam Divan, Atul Nanda Mukul Rohatgi

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: The Division Bench of P. Naveen Rao and Sambasivarao Naidu, JJ. allowed the appeal and set aside the impugned order holding a dispute arising out of an agreement concerning immovable property which is exclusively used in trade or commerce and whose ‘specified value’ is more than one crore is a commercial dispute and must be tried in a commercial court only.

The first respondent (R1) and the Appellant entered into Lease agreement with respect to property called as “Durgam Cheruvu Eco Tourism Deck and Party Area” for a period of ten years. However, the differences arose regarding taking over possession of the subject property and payment of lease amount. The Department for Youth Advancement and Culture, on request, granted R1, waiver of rent for a certain period, and R1 further claimed additional waiver from appellant vide representation, which was rejected, and strained relationships further, resulting in both taking recourse to arbitration for settling disputes vide Clause 10 Lease Agreement. An application under Section 9 Arbitration and Conciliation Act, 1996 was filed before ACJ City Civil Court seeking interim protection. The city civil court granted interim injunction in favour of R1 subject to deposit of monthly payments. Assailing this order, a present appeal was filed.

The appellant contended that since the transaction is commercial in nature and monetary value of the disputed property is above One crore , the ordinary Civil Court has no jurisdiction and the individual has to seek remedy under provisions of Commercial Courts Act, 2015.

The respondent submitted that only disputes which are of commercial nature must be resolved by the Commercial Court. In the present case, it was a lease agreement and not all contracts are commercial in nature. Besides, no commercial activity had commenced on the property due to which the dispute is not a commercial dispute and hence not maintainable before the Civil Court.

The Court observed that on a cumulative reading of Sections 2(1)(c)(vii), 10 and 12 Commercial Courts Act, 2015, it is apparent that if a dispute arising out of an agreement concerning immovable property which is exclusively used in trade or commerce and whose ‘specified value’ is more than one crore, then, it is a ‘commercial dispute’ and only the commercial Court has jurisdiction to deal with application filed under Section 9 of the Arbitration and Conciliation Act, 1996.

The Court further noted that from the clauses of the lease agreement, it is evident that the appellant earlier granted lease of the schedule property to another lessee for the very same purpose and said lessee built certain, tents, structures, fixtures, and micro-brewery. Disputes arose between earlier lessee and appellant and litigation is pending in the Courts. The terms of the lease agreement clearly indicate that the suit schedule land was already used for commercial purposes by an earlier lessee. Therefore, Section 2(1)(c)(vii) Commercial Courts Act, 2015, is attracted and dispute inter se between the appellant and the respondents is a commercial dispute.

The Court thus held “It is not in dispute that arrears of rent were more than two crores. Therefore, the ‘specified value’ of the subject dispute is more than one crore and in view of specific provision in Section 10 read with Section 12 of the Commercial Courts Act, 2015, application under Section 9 of the Act, 1996 must be filed in a designated Commercial Court only and Civil Court has no jurisdiction to deal with such applications”

[Telangana State Tourism Development Corp Ltd. v. A.A. Avocations Pvt. Ltd, 2022 SCC OnLine TS 1266, decided on 09-06-2022]


Advocates who appeared in this case :

M. Surender Rao and Zeeshan Adnan Mahmood, Advocates, for the Appellant;

P. Mohith Reddy, Advocate, for the Respondent;


*Arunima Bose, Editorial Assistant has reported this brief

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that jurisdiction of the Civil Court is impliedly barred under the Haryana (Control of Rent & Eviction) Act, 1973 and a tenant can only be evicted under the provisions of the said Act.

Factual Background

The Court was deciding the dispute relating to suit property situated within the municipal limits of Kaithal which is governed by the Haryana (Control of Rent & Eviction) Act, 1973.

The said property was leased to Burmah Shell Oil Storage Distributing Company Ltd. for a fixed period of 20 years at the rate of Rs.35/¬ per month vide lease dated 4th June, 1958 with effect from 1st April, 1958. The lease period initially was for 20 years and the lease further contemplated renewal of the lease once for another 20 years. The lease period commenced from 1st  April, 1958 for a period of 20 years expired on 1st April, 1978 and after that renewal option for another period of 20 years was availed and that lease period also expired on 1st April, 1998. Before expiry of the period of lease of 20 years, the Central Government enacted Burmah Shell (Acquisition of Undertakings) Act, 1976, pursuant to which the leasehold rights were taken over by the Bharat Petroleum Corporation Ltd. (the respondents).

The appellants then served a legal notice on the respondents dated 30th January, 1998 in which although Section 106 of the Transfer of Property Act, 1882 was not specifically mentioned, but in pith and substance the notice was served for terminating tenancy of the respondents and later a civil suit was filed for possession of the subject land on 7th August, 1998.

The respondents argued that on expiry of the lease period, the respondents became the statutory tenant of the suit property and the appellants had been receiving rent from the respondents without any demur and further averred that the Civil Court has no jurisdiction to entertain and try the suit as the same is specifically barred by the provisions of the Act 1973.

Analysis

The Court noticed that by virtue of the statutory enactment of Act 1976, the preexisting tenancy rights held by Burmah Shell with the appellants stood transferred and vested with the Central Government and thereafter by operation of Section 7, the said rights in turn stood transposed and vested in the Government Company (Bharat Petroleum Corporation Ltd.) as the Government Company statutorily became the tenant of the appellants/plaintiffs.

In V. Dhanapal Chettiar v. Yesodai Amma, (1979) 4 SCC 214 had an occasion to examine the controversy as to whether in order to get a decree/order of eviction against the tenant in the State Rent Control Act, it is necessary to give a notice under Section 106 of the Transfer of Property Act, 1882. It was held in that judgment that  even if the lease period is determined by forfeiture under the Transfer of Property Act, 1882, still the tenant continues to be a tenant that is to say that there is no forfeiture in the eyes of law and the tenant becomes liable to be evicted and the forfeiture comes into play only if he has incurred a liability to be evicted under the State Rent Act and not otherwise and further held that even after the expiry of the period of contractual tenancy, the tenant can be evicted only in terms of provisions of the State Rent Act which is applicable in reference the subject property in question.

Further, perusing the scheme of the Act 1976, the Court noticed that from the appointed day, right, title and interest of Burmah Shell with effect to Section 5(1) stood transferred and vested with the Central Government and by virtue of Section 7(2), the vesting of tenancy rights with the Central Government stood further transposed and vested in Bharat Petroleum Corporation Ltd. and that became a statutory tenant by virtue of Section 7(3) of the Act. To that extent, Section 11 of the Act has an overriding effect to the provisions of other laws.

That being so, the jurisdiction indeed of a civil Court is impliedly barred from the field covered specifically by the provisions of the Act 1973 and that being the complete code determining the rights of a tenant/landlord to the exclusion of the other laws.

The Court, hence, found no error in the view expressed by the High Court in the impugned judgment holding that the jurisdiction of the Civil Court is held to be barred and remedial mechanism for ejectment could be possible only under the provisions of the Act 1973.

[Subhash Chander v. Bharat Petroleum Corporation Ltd, 2022 SCC OnLine SC 98, decided on 28.01.2022]


*Judgment by: Justice Ajay Rastogi


Counsels

For appellant: Senior Advocate Manoj Swarup

For respondent: Senior Advocate V. Giri

Case BriefsSupreme Court

Supreme Court: Deciding the ambit of the bar of jurisdiction under Section 25 of the Punjab Security of Land Tenures Act, 1953 and whether the bar will operate, even in a situation, where the landlord-tenant relationship is disputed in a proceeding under Section 14A of the Act, the bench of KM Joseph* and S. Ravindra Bhat, JJ had held that the validity of the orders under Section 14A is open to scrutiny in a Civil Court, in a situation, when the tenant denies and disputes the case of the landlord that there is a landlord-tenant relationship. However,

“… a mere plea by the tenant, should not lead, without anything more, to render the Authorities helpless and bereft of power to order eviction. In a situation, where, the Authority finds the plea of the tenant to be completely frivolous and mere attempt at blocking the proceedings, the validity enacted under Section 25, cannot be diluted. The position must be understood as that the power to decide, cannot be assigned to the Authorities under the Act, of the existence of the landlord-tenant relationship.”

It was noticed that the words used in Section 25 of the Act, as already noticed, is that except in accordance with the provisions of the Act, the validity of any proceeding or Order, taken or made under the Act, cannot be questioned in any Court or before any other Authority.

The Court explained that the expression “validity of the decision or the Order” in Section 25 of the Act, would not include a case where, despite a dispute projected, that there was no landlord-tenant relationship, the Authority decides the said issue in the course of the Order of Eviction, under Section 14A, after brushing aside the tenant’s objection relating to his position, viz., that he is not a tenant. In such a situation, the validity is tied-up with the fundamental aspect of absence of power of the Authority to decide on the question of landlord-tenant relationship.

Explaining the true effect of Section 10 (2) and (3) read with Section 14A, the Court said that an application for ejectment of a tenant is to be made before the Assistant Collector under Section 14A. Such an application is to be decided after giving notice and it is to be decided summarily. Since the exclusive power to decide the application to evict the tenant has been conferred on the Assistant Collector, the law giver has further contemplated that after receipt of such an application by the Assistant Collector no other court or authority is to proceed with ‘any case relating to the same matter’ upon being informed by the Assistant Collector of the receipt of the application under Section 14A. What is more such proceeding is to be lapse after the determination of the dispute by the Assistant Collector. The law giver no doubt does contemplate an exclusive and expeditious remedy for the landlord to seek eviction brooking no over lapping of jurisdiction by exercise of power by any other court or authority on a parallel basis. However, this provision cannot mean that when the very existence landlord-tenant relationship is brought under a cloud by the tenant raising a dispute then the very premise on which the exclusive jurisdiction conferred on the Assistant Collector is not overturned.

“… the law giver has proceeded on the basis that the Assistant Collector is clothed with the power to decide a matter relating to eviction in a summary fashion. This would be inconsistent with scenario where the very existence of the landlord-tenant relationship is disputed. The law giver in other words proceeds on an assumption that the application made by the landlord is against a person who is indeed the tenant.”

It was further noticed that an Order passed under Section 14A, could be challenged by way of an Appeal, Review and Revision, as provided in the Tenancy Act, adverted to in Section 24 of the Act. Section 14A of the Act, provides for the eviction of a tenant notwithstanding anything contained in any other law. Therefore, apart from the fact that it became an exhaustive catalogue of circumstances, entitling the landlord to launch proceedings for eviction and also further designating the Statutory Authority, before which, it could be filed, it provided for a bar to challenge the validity of the orders passed, except by way of the remedies provided under the Tenancy Act.

“There would not be any justification for revisiting the principle laid down that when the relationship between landlord and tenant is contested, the Civil Court continue to have the jurisdiction despite the bar under Section 25 of the Act.”

The Court, hence, found no reason to hold that the validity of the Order passed by the Assistant Collector, as may be affirmed in Appeal, Review or Revision, cannot be questioned in a Civil Court, if the expression “validity” is conflated with legality. If an Order is illegal, it would be invalid.

[Assa Singh v. Shanti Prasad, 2021 SCC OnLine SC 1064, decided on 17.11.2021]


*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Case BriefsSupreme Court

Supreme Court: In a suit for a permanent injunction before a civil court is not barred by Section 85 of the Waqf Act, 1995, the bench of Hemant Gupta and V. Ramasubramanian, JJ has interpreted the provisions of the Waqf Act and had held that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act.

Statutory Scheme

A combined reading of Sections 68(6), 86, 90 and 93 goes to show that the bar of jurisdiction under Section 85 does not apply at least to the following matters, covered by Sections 68(6), 86 and 90:

(i) Whenever a District Magistrate passes an order directing the removed mutawalli or removed members of a Committee of Management to deliver possession of the records, accounts and properties of the waqf, to the successor or successor Committee of Management, any person claiming that he has right, title and interest in the properties specified in the order so passed by the Magistrate can approach a civil court;

(ii) The Board itself may approach a civil court either to set aside the sale in execution of a decree of civil court, of an immovable property which is a waqf property, or to set aside the transfer of any immovable property made by the mutawalli without the sanction of the Board or to recover possession of the property so sold or transferred, as the case may be;

(iii) The mutawalli is also empowered to approach the civil court to recover possession of any immovable property which is a waqf property, but which had been transferred by the previous mutawalli without the sanction of the Board (Section 86);

(iv) A waqf property can be brought to sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, but such a proceeding will be void if no notice thereof is given to the Board [Sections 90(2) & (3)].

After Amendment Act 27 of 2013, even the eviction of a tenant or determination of the rights and obligation of the lessor and lessee of such property, come within the purview of the Tribunal.

Thus, it was seen that the Act itself has created some confusion, leaving the rest to the courts to compound the conundrum and the Amendment Act 27 of 2013 also did not address the problem fully.

While the Waqf Act, 1995 lists certain matters as capable of being adjudicated by the Tribunal, it also makes a specific reference to court/civil Court also in following places:

  • Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the CPC, while trying a suit or executing a decree or order.
  • Sections 86, 90 and 93 makes specific reference to “Court”.
  • Section 68(6) goes a step further by making a reference to ‘civil court.

Courts’ approach so far

Normally while interpreting a clause relating to bar of jurisdiction of civil courts in statutory enactments, this court would tend to think, depending upon the language employed, that larger questions could still be decided by civil courts, while smaller questions are to be decided by the special Fora constituted under the Act. But in the case of Waqfs Act, 1995, the reverse has happened, with the courts ruling that if a property is admittedly a waqf property, the Tribunal would have no jurisdiction, though it would have jurisdiction to decide whether or not a property is a waqf property at all.

In view of the language employed in Sections 83 and 85, coupled with the reference to civil courts in Sections 86, 90 and 93, it appears that the question of bar of jurisdiction of the civil court, has been left by the law makers to the vagaries of judicial opinion and this has given rise to conflicting decisions

Waqf Act – Interpreted

A conjoint reading of Sections 6, 7 and 85 would show that the bar of jurisdiction of civil court contained in Section 6(5) and Section 7(2) is confined to Chapter-II, but the bar of jurisdiction under Section 85 is all pervasive. This can be seen from the following distinguishing features:

(i) Section 6(5) bars the institution or commencement of a suit or other legal proceeding in a court “in   relation to any question referred to in sub-section (1)”. Sub-section (1) of Section 6 speaks only about   two questions namely, whether a particular property specified as a waqf property in the list of waqfs is a waqf property or not and whether a waqf is Shia waqf or Sunni waqf;

(ii) Section 7(2) bars any court, tribunal or other authority from staying any proceeding before the Waqf Tribunal, in respect of a waqf, on the only ground of pendency of any suit, application or appeal or other proceeding. Section 7(2) specifically relates to the proceedings 36 under Section 7 and not to any other proceeding. This is clear by the use of the words, “no proceeding under this Section”. Section 7(1) again deals only with two questions namely, whether a particular property specified as waqf property in the list of waqfs is a waqf property or not and whether a waqf specified in the list is a Shia waqf or Sunni waqf. Therefore, the bar under Section 7(2) is also confined only to these two questions, on account of the use of the words, “no proceeding under this Section”.

(iii) While Sections 6(1) and 7(1) speak only about two questions which are germane to the matters covered by Chapter¬II of the Act alone, Section 85 speaks (i)  about any dispute, question or other matter relating to any waqf or waqf property and (ii) about “other matter which is required by or under this Act to be determined by a Tribunal”.

(iv) A major distinguishing feature between Sections 6(1) and 7 (1) on the one hand and Section 83 on the other hand is that the dispute, question or other matter referred to in Sections 6 and 7 are confined only to what is included in the list of waqfs prepared under Section 4 and published under Section 5. The words “specified … in the list of waqfs” found in sections 6 (1) and 7(1), are conspicuous by their absence in section 83 (1). Therefore, it is clear that Sections 6 and 7 speak only about two categories of cases, but Section 83 covers the entire gamut of  possible disputes in relation to any waqf or waqf property.

There are 2 limbs to Section 85.

  • The words, “any dispute, question or other matter relating to any waqf or waqf property” used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a waqf or waqf property, including the two questions mentioned in Sections 6(1) and 7(1).
  • The words in the second limb of Section 85 namely, “other matter which is required by or under this Act to be determined by a Tribunal”, seek to cover matters which have no relevance to the two questions covered by Section 6(1) and 7(1).

“Unfortunately, many courts were misled by the reference to two specific questions in Sections 6(1) and 7(1), to come to the conclusion that the bar of jurisdiction was confined only to disputes revolving around those two questions.”

However, it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property.

Breaking the first part of Section 83 into two limbs, the Court said that the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property.

Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter

  • relating to a waqf; and
  • relating to a waqf property.

Hence, stating that the court cannot do violence to the express language of the statute, the Court said,

“To say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).”

[Rashid Wali Beg v. Farid Pindari, 2021 SCC OnLine SC 1003, decided on 28.10.2021]


Counsels

For appellant: Advocate Pradeep   Misra

For Respondent: Senior Advocate Pradeep Kant


*Judgment by: Justice V. Ramasubramanian

Know Thy Judge | Justice V. Ramasubramanian

Case BriefsSupreme Court

Supreme Court: The bench of Hemant Gupta and V. Ramasubramanian, JJ has explained the scope of a “very strange provision” under Section 85A of the Maharashtra Tenancy and Agricultural Lands Act, 1948 and has held that

“Though Section 85(2) mandates that no order of the  Mamlatdar, the Tribunal, the Collector or the State Government passed under the Act shall be questioned in any Civil or Criminal Court, the bar contained therein stands diluted to some extent under Section 85-A.”

The Court said that such a provision is not found in many other statutes which contain provisions barring the jurisdiction of Civil Courts.

Relevant provisions

Section 85.  Bar of jurisdiction

(1)  No Civil Court shall have jurisdiction to settle, decide or deal with any question [(including a question, whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him)] which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the [Maharashtra Revenue Tribunal] in appeal or revision or the [Maharashtra Revenue Tribunal] in appeal or revision or the [State] Government in exercise of their powers of control.

(2) No order of the Mamlatdar, the Tribunal, the Collector or the [Maharashtra Revenue Tribunal] or the [State] Government made under this Act shall be questioned in any Civil or Criminal Court.

Explanation–– For the purposes of this section a Civil Court shall include a Mamlatdar’s Court constituted under the Mamlatdar’s Courts Act, 1906.

Section 85A. Suits involving issues required to be decided under this Act

(1)  If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the “competent authority”), the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil   Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Explanation–– For the purpose of this section a Civil Court shall include a Mamlatdar’s Court constituted under the Mamlatdar’s Courts Act, 1906.

How does Section 85-A dilute the bar contained under Section 85?

The Court explained that Section 85A, inserted by Bombay Act 13 of 1956, prescribes a two-stage procedure for the Civil Court to follow, whenever a suit is instituted, despite the bar contained in Section 85.

  • In the first stage, the Civil Court should stay the suit and refer the issues to the competent authority under the Act for determination.
  • In the second stage, the Civil Court should dispose of the suit in accordance with the procedure applicable thereto, after receipt of the decision of the competent authority, to whom the issues were referred for a decision under the Act.

Hence, if the bar under Section 85(2) was absolute, the Civil Court would have no option except to dismiss the suit. If the bar of jurisdiction is absolute, the question of the Civil Court staying further proceedings in the suit, referring the issues for the adjudication of the competent authority under the Act and disposing of the suit after receipt of a decision from the competent authority, would not arise.

[Salim D. Agboatwala v. Shamalji Oddhavji Thakkar, 2021 SCC OnLine SC 735, decided on 17.09.2021]

_________________________________________________________________________________________

Counsels:

For appellants” Senior Advocate Kevic Setalvad

For Respondents: Senior Advocate Shekhar Naphade and advocate Aniruddha Joshi


*Judgment by: Justice V. Ramasubramanian

Know Thy Judge | Justice V. Ramasubramanian

Case BriefsSupreme Court

Supreme Court of India: Observing the well-settled position of law that, Mutation Entry does not confer any right, title or interest in favour of the person and it is only recorded for the fiscal purpose, Division Bench of M.R. Shah and Aniruddha Bose, JJ., upheld the decision of the Madhya Pradesh High Court.

Aggrieved and dissatisfied with the impugned decision passed by the Madhya Pradesh High Court by which the High Court allowed the petition and quashed the decision by Additional Commissioner, Rewa Division directing to mutate the name of the petitioner in the revenue records, which was sought to be mutated on the basis of the will, the original respondent 6 preferred the present special leave petition.

Analysis, Law and Decision

Supreme Court stated that the dispute was with respect to mutation entry in the revenue records.

It emerged that the application before the Nayab Tehsildar was made on 9-8-2011, i.e., before the death of Ananti Bai, who executed the alleged will.

Bench added that, it cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed.

Settled Position of Law

Mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.

If there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of will has to approach the appropriate civil court and get his rights crystalized and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.

Analyzing further, the Court added that right from 1997, the law is very clear. In Supreme Court’s decision of Balwant Singh v. Daulat Singh, (1997) 7 SCC 137, Court had considered the effect of mutation and observed that mutation of property in revenue record neither creates nor extinguishes title to the property nor has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue.

In the Supreme Court decision of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it was observed that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”. So far as the title of the property is concerned, it can only be decided by a competent civil court.

In the following decisions also, the above view was taken:

Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.

While concluding the matter, Supreme Court held that it cannot be said that High Court committed any error in setting aside the order passed by the revenue authorities to mutate the name of the petitioner in revenue records on the basis of alleged will and relegating the petitioner to approach the appropriate Court.

Therefore, the Special Leave Petition was dismissed. [Jitendra Singh v. State of M.P., 2021 SCC OnLine SC 802, decided on 6-09-2021]


Advocate before the Court:

Nishesh Sharma, Advocate appearing for the petitioner.

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharyya, J., expressed that:

Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter.

Second wife of Sardar Natha Singh (deceased) who was a freedom fighter getting a pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise has preferred the present challenge.

Petitioner, relying on a deed of declaration of divorce, executed by respondent 11, the first wife and Sardar Natha Singh, the husband of petitioner claimed widow pension, which was refused on the ground that such deed of divorce was not acceptable under the Hindu Marriage Act, 1955 in the absence of a decree of divorce obtained from a competent court of law.

It was submitted that the petitioner and her husband were governed by customs of Jat Sikhs, which permit such a divorce. Petitioner claimed that Section 29(2) of the Hindu Marriage Act, 1955 is attracted.

Analysis and Decision

While noting the facts and circumstances of the case, Bench expressed that for Section 29(2) of the Hindu Marriage Act, 1955 to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage.

Court noted that in the present matter, High Court did not approach the civil court for a declaration regarding the validity of the divorce deed.

Further, Bench added that the burden and the initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence – oral or documentary – in order to attract the benefit of Section 29(2) of the Hindu Marriage Act.

Section 2(1)(b) of the Hindu Marriage Act, 1955 stipulates that the Act applies to Sikhs as well. Thus, the provisions of the Act, including Section 13 thereof (pertaining to divorce), applies to Sikhs in general.

 High Court stated that marriage between respondent 11 and her deceased husband could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act, unless the existence of any contrary custom was proved by evidence.

To justify an exception to Section 13 within the purview of Section 29(2), petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage between respondent 11 and her deceased husband was recognized by custom.

Bench also stated that respondent-authorities do not have the jurisdiction in law to decide the matrimonial status of the private parties and/or the validity of the deed of declaration, which could only be done before a civil court.

The initial grant of pension to respondent 11 is an endorsement of the fact that the first wife was found eligible for such pension by the respondent authorities and she had already started getting pension.

A suit in question was filed by respondent 11, inter alia, for a declaration that she was the only married wife and the only widow of Sardar Natha Singh and was entitled to widow pension and that the present petitioner was not the wife and widow of Sardar Natha Singh.

While concluding, Court expressed that the divorce decree executed purportedly between respondent 11 and her deceased husband was not endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted.

Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.

Bench held that the fact that pension was granted earlier in favour of respondent 11 upon a valid sanction being issued by respondent-authorities, it would be unjust to deprive respondent 11 of such pension at the behest of petitioner, merely on the basis of the petitioner’s assertion on oath in the present writ petition that a deed of divorce, supported by valid and recognized customs, was executed between respondent 11 and her deceased husband.

Hence, the High Court decided that in view of the long-pending litigation between the private parties, it would be lucrative to direct pension to be paid equally between the petitioner and respondent 11. However, such a course of action would be grossly illegal.

Although Court’s empathy went fully with the petitioner, who was an unemployed lady of about 63 years as per her affidavit, however, the Court found that it had no power to enact law but was bound by the provisions of law as the Parliament, in its own wisdom, chose to promulgate.

Therefore, the writ petition was dismissed.[Krishna Veni v. Union of India,  2021 SCC OnLine Cal 437, decided on 18-02-2021]


Advocates who appeared for the parties:

For the petitioner: Gunjan Shah and Vinit Kumar Choubey

For respondents 1, 2 and 4: Kumarjyoti Tiwari

For respondent 9: Subrata Roy

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J., allowed the instant second appeal challenging the concurrent judgments and decrees passed by the trial Court and district judge for recovery of arrears of rent and the electricity charges for the premises which had been leased out to the appellant bank.

Brief facts of the case follows as, the plaintiff was the owner in possession of SCO No.147-148, Sector 17-C, Chandigarh which was leased out to the appellant. When the said lease came to end the appellant issued a notice intimating the plaintiff to take possession of the premises. However, the plaintiff insisted upon the bank to first clear the water and electricity dues; and further vaguely insisted to ensure the handing over of the said property in the same condition in which it was handed over to the appellant.

Appellant contended that the plaintiff never approached the appellant formally, instead filed a police complaint stating that the appellant is restraining them from committing civil work in their premises, which was sought only to create proofs of appellant’s possession as the complaint was withdrawn when the bank admitted its possession over the premises as the plaintiff has not formally accepted the possession. Later on, the plaintiff preferred a rent petition before the Rent Controller, Chandigarh for eviction of the appellant on the ground of non-payment of rent, that too, when the appellant was already willing to hand over the possession. Hence, it is clear that the plaintiff was avoiding taking possession of the property only to prolong the matter so as to raise the claim of rent at a very hefty amount of about 12 lakhs per month.

The plaintiff preferred the present suit before the Civil Court on 18-02-2014 seeking recovery of amount of 1,27,96,137 rupees on account of arrears of rent which was decreed in his favour. The contentions of the petitioner were that he could not take possession of the premises since the appellant had not removed the construction of RCC. It was further stated that since, the appellant had paid complete rent; therefore, the security deposits, which were lying with the plaintiff, are to be adjusted towards the outstanding rent. The counsel further argued that both the courts below have recorded concurrent findings of facts against the appellant. Therefore, in second appeal the appellant cannot be permitted to raise the same issue once again.

The Court while reversing the decrees of lower Courts held that lease deed specifically shows that it was the sole responsibility of the plaintiff to raise the RCC construction. Therefore, the appellant could not be fastened with any liability to remove the same. It was observed that the plaintiff had no right to refuse taking over of possession of the premises in question for any reason whatsoever. Also, the delay in transfer of possession was only creation of the plaintiff themselves. Therefore, they are not entitled to claim any compensation or arrears.

The Court further established that there could not be any blanket rule that the concurrent findings cannot be interfered with in second appeal. It would depend upon the facts of the case, if the courts below record a finding in ignorance or against the evidence on the file, then the Court in second appeal should not only interfere with such findings, rather, it is the legal duty cast upon such a court to bring the same in consonance with the evidence led on file. [HDFC Bank Ltd. v. Sanjiv Kumar Jain, 2020 SCC OnLine P&H 2253, decided on 02-12-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that the High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.

The Court was hearing the case relating to suit for permanent injunction wherein the High had dismissed the second appeal without framing any substantial question of law. It was contended before the Court that framing of substantial question of law is mandatory in terms of Section 100 CPC and hence, the matter should be remitted back to the High Court for determination of the substantial question of law framed by the appellants.

On this, the Court explained that Sub-section (1) of Section 100 CPC contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 CPC.

Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law.

“The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law.”

It was the case of the appellants that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue., thereby causing serious prejudice to the rights of the appellants. Similarly, the application under Order XLI Rule 27 of the Code was not decided which was again prejudicial to their rights.

The Court, however, found that such substantial questions of law did not arise for consideration. The issue of jurisdiction was not an issue of fact but of law. Therefore, it could very well be decided by the First Appellate Court while taking up the entire appeal for hearing.

It was noticed that the suit was simpliciter for injunction based upon possession of the property, hence, the said suit could be decided only by the Civil Court as there is no mechanism prescribed under the Land Revenue Act for grant of injunction in respect of disputes relating to possession. The Civil Court has plenary jurisdiction to entertain all disputes except in cases where the jurisdiction of the Civil Court is either expressly or impliedly barred in terms of Section 9 CPC. Since there is no implied or express bar of jurisdiction of the Civil Court in terms of Section 9 CPC, the Civil Court has plenary jurisdiction to decide all disputes between the parties.

Hence, it was held that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[Kirpa Ram v. Surendra Deo Gaur,  2020 SCC OnLine SC 935, decided on 16.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

“It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right “without prejudice to any other remedy available’, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.”


Background of the Case


The said decision of the Court came in the matter relating of delay in handing over the possession of flats to buyers by the developer. The apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Even after four years there were no signs of the Project getting completed and hence, a complaint was filed by the Buyers.


RERA Act vis-à-vis CP Act: Statutory Analysis


The Court discussed the following provisions for the purpose of deciding the case at hand:

  • Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine.
  • Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law.
  • Section 89 provides that the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

The Court noticed that an allottee placed in circumstances similar to that of the Complainants, could have initiated following proceedings before the RERA Act came into force.

A) If he satisfied the requirements of being a “consumer” under the CP Act, he could have initiated proceedings under the CP Act in addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a “consumer”, he could initiate and avail only normal civil remedies.

C) If the agreement with the developer or the builder provided for arbitration:-

i) in cases covered under Clause ‘B’ hereinabove, he could initiate or could be called upon to invoke the remedies in arbitration.

ii) in cases covered under Clause ‘A’ hereinabove, in accordance with law laid down in Emaar MGF Ltd v. Aftab Singh, (2019) 12 SCC 751, he could still choose to proceed under the CP Act.

The Court noticed that on plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated hereinabove, would stand barred from invoking the jurisdiction of a Civil Court.

“The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear.”

To answer the question whether the Commission or Forum under the CP Act is a civil court or not, the Court referred to the decision in Malay Kumar Ganguli v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 , where it was held,

“The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court.”

Hence, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

The Court further discussed the proviso to Section 71(1) of the RERA Act which entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. It noticed,

“The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.”

It was held that insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available”.

“Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.”

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894, decided on 02.11.2020]

Case BriefsSupreme Court

Supreme Court: The single judge bench of V. Ramasubramanian, J has held that

  • the issue of jurisdiction of a court to try an “offence” or “offender” as well as the issue of territorial jurisdiction, depend upon facts established through evidence;
  • if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in sections 177 to 184 of the Code; and
  • these questions may have to be raised before the court trying the offence and such court is bound to consider the same.

DETERMINATION OF JURISDICTION OF CIVIL COURTS VIS-À-VIS CRIMINAL COURTS

While jurisdiction of a civil court is determined by (i) territorial and (ii) pecuniary limits, the jurisdiction of a criminal court is determined by (i) the offence and/or (ii) the offender. But the main difference between the question of jurisdiction raised in civil cases and the question of jurisdiction arising in criminal cases, is two-fold i.e.

CIVIL COURT

CRIMINAL COURT

The stage at which an objection as to jurisdiction, territorial or pecuniary, can be raised, is regulated in civil proceedings by Section 21 of the Code of Civil Procedure, 1908. There is no provision in the Criminal Procedure Code akin to Section 21 of the Code of Civil Procedure.
In civil proceedings, a plaint can be returned, under Order VII, Rule 10, CPC, to be presented to the proper court, at any stage  of  the  proceedings But in criminal proceedings, a limited power is available to a Magistrate under section 201 of the Code, to return a complaint.  The power is limited in the sense that:

 

  1. it is available before taking cognizance, as section 201 uses the words “Magistrate who is not competent to take cognizance”
  2. the power is limited only to complaints, as the word “complaint”, as defined by section 2(d), does not include a “police report”.

“TRIES AN OFFENCE” VERSUS “TRIES AN OFFENDER” UNDER SECTION 461(l) CrPC, WHICH IS MORE APPROPRIATE?

The rules relating to territorial jurisdiction are given in Chapter XIII in detail. However, it is in that Chapter XXXV that one has to search for an answer to the question as to what happens when a court which has no territorial jurisdiction, inquires or tries an offence.

A cursory reading of Section 461(l) and Section 462 gives an impression that there is some incongruity. Under Clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void.

“A proceeding which is void under Section 461 cannot be saved by Section 462.”

The focus of clause (l) of Section 461 18 is on the “offender” and not on the “offence”. If clause (l) had used the words “tries an offence” rather than the words “tries an offender”, the consequence might have been different.

Section 460, which lists out nine irregularities that would not vitiate the proceedings, uses the word “offence” in three places namely clauses (b), (d) and (e).  Section 460 does not use the word “offender” even once. On the contrary Section 461 uses the word ‘offence’ only once, namely in clause (a), but uses the word “offender” twice namely in clauses (l) and (m).

“Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void under Section 461. Section 462 does not make the principle contained therein to have force notwithstanding anything contained in Section 461.”

Hence, the jurisdiction of a criminal Court is normally relatable to the offence and in some cases, to the offender, such as cases where the offender is a juvenile (section 27) or where the victim is a women [the proviso to clause (a) of section 26]. But Section 461(l) focuses on the offender and not on the offence. The saving clause contained in Section 462 of the Code of 1973 is in pari materia with Section 531 of the Code of 1898.

Considering the aforementioned scheme of CrPC, the Court held that the words “tries an offence” are more appropriate than the words “tries an offender” in section 461 (l). This is because, lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void.

“In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender (such as in section 27). But Section 461 (l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.”

[Kaushik Chatterjee v. State of Haryana, 2020 SCC OnLine SC 793, decided on 30.09.2020]

Case BriefsHigh Courts

Delhi High Court: Najmi Waziri, J., while addressing the present matter considered the following issues:

Whether elections to the Board of Directors of a company; allegations of oppression and mismanagement; wrongful appointment of an Ombudsman in violation of Articles of Association could be adjudicated by a civil court

OR

Whether jurisdiction vests exclusively with the National Company Law Tribunal?

Background

Appeal under Sections 104 and 151 read with Order XLIII Rule 1 CPC, impugns an order of the ADJ, Tis Hazari Courts, New Delhi whereby the appellant’s two applications were dismissed and the interim injunction sought by the plaintiff was granted.

Contention of the appellant

Appellant submits that the suit is not maintainable before a Civil Court because of the bar placed on Civil Courts by Section 430 of the Companies Act, 2013.

Section 430 of the Companies Act, 2013

Civil court not to have jurisdiction:

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate.” The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.

Appellant also relied on the decision of this Court in SAS Hospitality Pvt. Ltd. v. Surya Constructions Pvt. Ltd., 2018 SCC Online Del 11909, wherein it was observed that,

“The bar contained in Section 430 of the 2013 Act is in respect of entertaining “any suit”, or “any proceedings” which the NCLT is “empowered to determine”.”

Appellant also relied on the decision of Madras High Court in Viji Joseph v. P. Chander, 2019 SCC OnLine Mad 10424 wherein the Court examined an election dispute under Section 20 of the Companies (Management and Administration) Rules, 2014, involving the maintainability of the election of the Board of Directors through electronic means.

After analyzing Section 242 and other circumstances pertaining to the case, Madras High Court concluded that only the Tribunal had powers to deal with the issue raised in the suit and the civil court had no jurisdiction to entertain the suit.

Issues raised in the present matter

Challenging matters relating to the AGM, the Board of Directors of the appellant company, the appointment of an ombudsman and other related issues.

The Madras High Court Decision as referred above has also discussed the expanse of Section 430 of the Companies Act, 2013.

Senior Advocate for the appellant submits that the Companies Act and the National Company Law Tribunal Rules, 2016, are together a complete code. Ample power has been provided to the NCLT – akin to a civil court – to deal with all issues for which powers have been conferred upon the Tribunal.

Further, the appellant submitted that, in the present case, the process of election to the Board of Directors/Members of the Apex Council, has been challenged because of it being allegedly contrary to the procedure laid down in the AoA and the notice calling for the AGM, and that the elections were held on the basis of a voice vote instead of paper ballot, contrary to what was mentioned in the AGM notice.

Hence, the High Court on perusal of the above stated that Sections 241, 242 and 244 of the Companies Act deal with the issues raised in the present suit.

NCLT has been specifically conferred powers to address grievances relating to the affairs of the company, which may be prejudicial or oppressive to any member of the company, or for issues of appointment of directors.

The appointment of an Ombudsman, would also form a part of the conduct and management of the affairs of the company.

Supreme Court in its’ decision in Shashi Prakash Khemka v. NEPC Micon, 2019 SCC Online SC 223 discussed the scope of Section 430 and stated the same to be vast and the jurisdiction of the civil court to be completely barred when the power to adjudicate vests in the Tribunal.

Therefore, the lis and grievances raised in the present suit can be agitated only before the NCLT as the civil court would have no jurisdiction.

The appeal was allowed. [Delhi & District Cricket Association v. Sudhir Kumar Aggarwal,  2020 SCC OnLine Del 1223, decided on 21-09-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. dismissed a petition praying for quashing the criminal proceedings against the petitioner initiated under Section 482 of the Code of Criminal Procedure, 1973 when a simultaneous arbitration proceeding was going on against the petitioner in a civil court.

The petitioner was a surety for one, M.L. George, who had subscribed for four of the respondent company’s chitties and defaulted in paying a certain balance amount. As surety for George, the petitioner was supposed to pay the balance amount to the respondent company on his default. The petitioner failed to pay the amount owed by Mr George to the respondent company and hence a complaint was filed against the petitioner under Section 138 of the Negotiable Instruments Act, 1881.

The counsels for petitioner P.V. Kunhikrishnan and P.V. Anoop contended that the averments in the complaint do not constitute the ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Further, it was contended that the initiation of the arbitration proceedings at the instance of the respondent affected the maintainability of the complaint filed against the petitioner for an offence punishable under the Negotiable Instruments Act, 1881.

The Court did not find any merit in the contentions of the petitioner and hence rejected the petitioner’s contentions. Reliance was placed on the case of Sri Krishna Agencies v. State of A.P., (2009) 1 SCC 69 where the Supreme Court, setting aside the order of the High Court for quashing proceedings under Section 138 of the Negotiable Instruments Act, 1881, on the grounds of simultaneous arbitration proceeding, held that disputes to arbitration could not be an effective substitute for a criminal prosecution when the disputed act is an offence. It must, however, be elementary that the two are based on the independent cause of action.

Hence, the Court consequently dismissed the petition and allowed both criminal and civil proceedings simultaneously against the petitioner. [Bindhu A.V. v. Sree Gokulam Chit And Finance Co. (P) Ltd., 2020 SCC OnLine Ker 198, decided on 17-01-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque, J. dismissed a petition challenging the order of Appellate Authority under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 

The case of the petitioner is that her father executed a gift deed in her favour in 2014, thereafter filed an application in the Maintenance Tribunal under Section 23 of the MWPSC Act to revoke the said gift deed on the ground that his daughter is not providing him with necessary facilities to protect his well being. The Tribunal declined the father’s prayer but ordered the daughter (petitioner herein) to provide necessary facilities to her father to protect his well being. The father approached the appellate authority against the said order. The Appellate Authority allowed his appeal and granted revocation of the gift deed. Aggrieved thereby, the instant petition was filed in this Court.

Sri G. Harikumar, appearing on behalf of the petitioner argued that Section 23 can be attracted only in case of admission of a valid transfer. However, the respondent in the application stated that the deed was fraudulently obtained by undue influence and coercion. Thus, it is a case of civil dispute and shall be resolved by a civil court and not by Maintenance Tribunal.

Sri B.N.Shivsankar, appearing on behalf of the respondents relied on the object of the MWPSC Act. In addition to this, it was argued that the transfer of property of a senior citizen by way of gift is subject to providing basic amenities and if these are not provided the deed can be revoked under Section 23 of the MWPSC Act. 

The Court looked into the scope and object of the Act and accepted the respondent’s contention. The parliament enacted MWPSC Act to uphold the dignity and respect of a senior citizen at the time of old age. It relied on deontological moral theory of legislation and said that there are a certain type of actions which have universal acceptance. The Court also said that the tribunal has a duty to elicit the truth by adopting an inquisitorial approach as the act is not intended at dispute resolution but to promote measures to secure the welfare and interest of the senior citizens and parents. 

Relying on Radhamani v. State of Kerala, 2015 SCC OnLine Ker 33530, the Court held that there is no requirement of a written stipulation to effect that the transferee maintains the transferor. The tribunal should look at the circumstances under which the deed was executed.

Based on the following grounds the Court set aside the order of the Appellate Authority and remitted back the matter for reconsideration by the Tribunal. It also ordered that since the respondent is residing abroad, the Tribunal can hold sessions over electronic media.[G.S. Manju v. K.N. Gopi, 2019 SCC OnLine Ker 5363, decided on 10-10-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Vivek Rusia, J.

Facts of the case were such that petitioners are daughters of respondent who had sold his property to other respondents. After the sale was concluded one of the respondent to whom the property was sold filed an application under Sections 109 and 110 of M.P. Land Revenue Code, 1959 before the Tehsildar seeking mutation of his name which was allowed.

Petitioner being aggrieved by the same filed an appeal before the Sub-Divisional Officer Revenue, Garoth. SDO allowed the appeal and set aside the order passed by Tehsildar on the ground that the Tehsildar did not inquire about the status of the property if it was a self-earned property or ancestral property before passing the order of mutation. Being aggrieved by the order of SDO an appeal was preferred before the Additional Commissioner who set aside the order passed by SDO and therefore confirming the order of Tehsildar, hence, this petition was filed.

It was brought before Court that petitioners had already filed a Civil Suit challenging the sale deed which was executed by respondent in favour of one of the other respondent claiming their right and title over the property.

High Court observed the settled law that the orders passed by the Revenue Authority were not binding on the Civil Court and Revenue Court could not have decided the title of the property. Court viewed that lest a Civil Suit is pending the issues raised in this petition could be decided before Civil Court. With the aforementioned observation, this petition was dismissed. [Bharat Kunwar v. Mangilal, 2019 SCC OnLine MP 609, dated 05-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench comprising of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial) dismissed an appeal filed against the order of National Company Law Tribunal, Bengaluru dismissing appellant’s application under Section 9 of the Insolvency and Bankruptcy Code, 2016.

The appellant had filed a petition under Section 433(e), 434(1) and 439 of Companies Act, 1956 before the Karnataka High Court. The petition was transferred pursuant to rule 5of the Companies (Transfer of Pending Proceedings) Rules, 2016 to NCLT. The petition was treated as an application under Section 9 of the I&B Code by the appellant. Demand Notice under Section 8(1) was issued. After hearing the parties, NCLT dismissed the application on the ground of pre-existing dispute. Aggrieved thereby, the present appeal was filed.

Raghavendra M. Bajaj, Advocate for the appellant submitted that the Corporate Debtor had agreed to pay dues by 5 different times. But the Corporate Debtor claimed the existence of ‘dispute’. It raised objections regarding non-completion of project within time and completion of the same in haste with defects.

The Appellate Tribunal noted that the objections were raised by the Corporate Debtor much prior to the filing of petition under Companies Act. It was held that such disputes cannot be decided by NCLT but only by a civil court of competent jurisdiction on basis evidence. Therefore, as there existed a dispute raised prior to filing of petition under Sections 433(e) and 434(1) of Companies Act, it was held that the application under Section 9 of I&B Code was not maintainable. [Yash Technologies (P) Ltd. v. Base Corpn. Ltd., 2019 SCC OnLine NCLAT 1, dated 03-01-2019]

Case BriefsHigh Courts

Delhi High Court: While disposing of a petition, a Single Judge Bench comprising of Yogesh Khanna, J. set aside the directions given by a Civil Judge to the Commissioner of Police to organise training programmes for police officials.

The Civil Judge was dealing with a civil suit (property dispute) between two private parties. During the course of proceedings, the parties settled the dispute. The suit was disposed of and decree sheet was ordered to be prepared. Aggrieved thereby, the Commissioner of police preferred the present appeal.

A short question before the High Court was, “In a list between two private parties, can a trial court travel beyond the pleadings to pass such like directions since it is not exercising writ jurisdictions?”

The Court relied on its earlier decision in University of Delhi v. Neelam Gaur, 2002 SCC OnLine Del 500 and observed, “a Civil Court does not possess inherent power to give directions of general nature having far-reaching effect, whatever laudable object such directions may seek to achieve viz., giving training to its officers by the petitioner, such directions ought not to have been passed especially, when the lis before the court did not require passing such directions.” Resultantly, the Court set aside the order of the Civil Judge so far it related to the directions given to the petitioner herein. [Commissioner of Police v. Gayatri, 2018 SCC OnLine Del 13048, dated 18-12-2018]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Mohit Kumar Shah, J. while hearing a civil writ petition ruled that the district administration was not empowered to order sealing of a property and direct eviction of the possessor therefrom.

The present petition was filed praying for quashing order of Sub-Divisional Magistrate, Gaya whereby petitioner’s shop had been sealed on the basis of a complaint of his landlady alleging that despite demanding the petitioner-tenant to vacate the shop, he had refused to do so and had instead, threatened her.

The Court opined that the District administration was not empowered to seal the shop of the petitioner at the instance of his landlady. Petitioner’s eviction or sealing of his shop could have taken place only after following the due process of law. If the landlady wanted to evict the petitioner, she was free to approach the Court of competent civil jurisdiction for the said purpose.

In view of the above, the petition was allowed and impugned order was quashed. District Administration was directed to open the seal of petitioner’s shop and hand over its possession to him within three days of the date of the present order.[Ram Pravesh Yadav v. State of Bihar, 2018 SCC OnLine Pat 2170, decided on 05-12-2018]