Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J. directed State to ensure that no new flag masts and posts be permitted to be brought on to the roads and public spaces of the State without first obtaining permissions from the competent Authority.

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

The facts of the case were that the petitioner alleged that certain political parties had put up a flag mast within their property illegally while it was contended by the respondent that t flag mast was not in the property of the petitioner, but on a road ‘purambokku’.

Calling it an issue of a larger dimension, the Bench had registered a suo motu case and had asked the respondent as to how any entity was allowed to put up flag mast on public roads or road ‘purambokku’ without permission, as it would, prima facie, be a violation of the Kerala Land Conservancy Act.

Considering the gravity of the issue, the Bench expressed concern that political and other similar flag masts are being installed across the length and breadth of the State, without any respite and the culture of putting up flag masts wherever, by influential political parties or such other association of people had permiated into the society very deeply. The Bench said,

“Not merely are flag posts erected, the persons who do so thereafter seem to think that they are in occupation and possession of the land on which it is, and boards and such other installations are also then made next to it or along with it; and this is demonstrably clear in almost every nook and corner of the State.”

Hence, the Bench asked the Authority concerned to file an affidavit dealing with the available legal provisions in this regard. The State was directed to ensure that no new flag masts and posts be permitted to be brought on to the roads and public spaces of the State without first obtaining permissions from the competent Authorities; and that the requisite steps for this purpose are observed strictly.

Additionally, the state was directed to cause an audit and survey of the various illegal flag masts across the length and breadth of the State and make the information with respect available to the Court.[Mannam Sugar Mills Co-Operative Ltd. v. Superintendent of Police, WP(C) No. 1671 of 2021, decided on 01-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: M/S R.T.Pradeep, Sri.V.Vijulal, Smt.M.Bindudas, Sri.K.C.Harish

For the State of Kerala: Sri.E.C.Bineesh, Government Pleader

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta* and V. Ramasubramanian, JJ., held that revenue record is not a document of title. The Bench expressed,

“Even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest over 12 bighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha.”

A notification dated 11-10-1952 was issued under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 by Uttar Pradesh government to the effect that an area of 162 acres in Village Kasmandi Khurd shall not vest with the Gaon Samaj and, accordingly all rights, title and interest of all intermediaries including the forest had vested in the State of Uttar Pradesh by that notification. Subsequently, on 23-11-1955, by a notification, the said land was declared as Protected Forest under Section 4 Indian Forest Act, 1927.

However, the local management committee (Gaon Sabha) had put the lessees into possession of land in question which was challenged by the Forest Department. Though, the Additional Commissioner, Lucknow decided the issue in favour of Forest Department, that order was set aside by the High Court of Allahabad.

Can a land be declared Protected Forest without mentioning its details in the notification?

The respondent-lessee argued that the details of land in respect of which notification under Section 4 of the Forest Act was issued were not mentioned, except providing the total area measuring 162 acres, hence the notification was vague and did not comply with the conditions specified in Section 4 of the Forest Act and it was only in the proclamation published under Section 6 of the Forest Act that the details of land (Khasra No. 1576) was mentioned.

Rejecting the contentions raised by the lessee, the Bench opined that it would be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries, as done by the notification dated 23-11-1955, by mentioning that the land measuring 162 acres would constitute forest land. The Bench observed,

The notification dated 23.11.1955 has the boundaries on all four sides mentioned therein. There is no other requirement under Section 4 of the Forest Act. It is only Section 6 of the Forest Act which needs to specify the situation and limits of the proposed forest.”

Noticeably, in terms of clause (a) of Section 6 of the Forest Act, the details of khasra numbers which were part of 162 acres found mention in the proclamation so published. Therefore, the Bench held that statutory procedural requirements were satisfied.

Is final notification under S. 20 necessary for acquisition of land declared as Protected Forest?

Disagreeing with the argument of the respondent that the final notification under Section 20 of the Forest Act was necessary, the Bench observed that Section 20 of the Forest Act does show that for a reserved forest, there is a requirement of publication of notification but no time limit is prescribed for publication of such notification under Section 20. Therefore, even if notification under Section 20 of the Forest Act had not been issued, by virtue of Section 5 of the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Bench held that the Gaon Sabha was not competent to grant lease in favour of the appellant.

Calling the findings of the High Court that since no objections were filed by the Forest Department earlier, the objections would be barred by Section 49 of the Consolidation Act, clearly erroneous, the Bench clarified,

“The land vests in the Forest Department by virtue of notification published under a statute. It was the lessee who had to assert the title on the forest land by virtue of an agreement in writing by a competent authority but no such agreement in writing has been produced.”

Therefore, the Bench held that the lessee would not be entitled to any right only on the basis of an entry in the revenue record. Accordingly, the order of the High Court was held to be not sustainable in law and the same was set aside.

[Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj, 2021 SCC OnLine SC 868, decided on 05-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For Department of Forest: Advocate Kamlendra Mishra

For the Respondent: Advocate Aftab Ali Khan

For Gaon Sabha: Advocate Mr. Hooda

*Judgment by: Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., set aside the order of Delhi High Court whereby the High Court had held that the Municipal Council could not impose different policies on lands transferred to it by the government than those imposed on lands owned by it. The Bench clarified,

“…the rights of Government of India in administering the markets as a lessor or licensee alone was transferred (to the Council) and not the land or the building thereon. The Council was to administer the properties as a delegate of the Union.”

Factual Matrix

A show cause notice was issued to the occupant-respondent alleging sub-letting and unauthorised construction in a stall located at Baba Kharag Singh Marg. The occupant-respondent claimed ownership of the property stating that the shop was allotted to one Maheshi Dhoundiyal and the same was sublet in the year 1999 to the occupant and later on it was transferred in her favour in the year 2000. The occupant-respondent relied upon the Circular dated 25-07-1996 as well as the policy adopted by the Government in pursuance of the Cabinet decision dated 31-08-2000 whereby occupants of the shops in the 14 specified markets were resolved to be granted ownership rights.

However, the Estate Office passed an order of eviction, ordering eviction of the allottee from whom the occupant had purchased the stall in question. The appeal against the said judgment was dismissed by the learned Additional District Judge.

Findings of the High Court

In appeal the High Court of Delhi allowed the petitions holding that merely because market in question i.e., Baba Kharag Singh Marg Market had fallen into the lap of New Delhi Municipal Council by virtue of notification dated 24-03-2006, it did not mean that the policy regarding substitution/mutation of ownership for that market could be different from the one adopted by the Council for all other markets managed by it. Accordingly, the High Court held that the Council could not treat them differently and the occupant was held to be entitled to regularization of allotment in accordance with its policies.

Nature of the Title

The predecessor of the occupant-respondent was allotted the site in question on 04-08-1998. Some of the conditions of the license deed read thus:

“The licencee(s) shall not permit the said premises or any part thereof being used by any other person for any purpose whatsoever without the previous consent in writing of the Government and in default thereof shall be liable for ejectment. The licencee(s) shall not introduce any partner nor shall he/they transfer possess on of the premises or part thereof or otherwise carry on the business in the premises alienate his interest in the premises.”

A partnership deed was executed by the predecessor of occupant-respondent on 12-06-2000 with the occupant-respondent wherein the predecessor had kept only 20% share in the partnership firm and the remaining 80% share was that of the occupant. The partnership was dissolved within 2 months with the condition that the predecessor of the occupant would have no objection for transfer of the shop in favour of the occupant-respondent and regularization in her name.

Contention of the Parties

On 24-03-2006, the Ministry of Urban Development, Government of India transferred certain markets to the Council and Municipal Corporation of Delhi w.e.f. 01-04-2006. The argument of the occupant-respondent was that the policy of regularization/restoration of allotment followed by the local bodies should be applied to the site in question rather that policies followed by the Land & Development Office and Directorate of Estates. Reliance was also placed upon an advertisement issued by the Government of India published in the Hindustan Times on 06-08-2001 to confer ownership rights to the shopkeepers of 12 markets. It was argued that the Government of India on 25-07-1996 allowed regularization of shops, stalls, flats which had come into occupation of the respective premises on or before 20-10-1989.

The appellant argued that the license deed executed in the year 1998 had clearly prohibited subletting of premises, including induction of a partner. It was also argued that the notice published on 06-08-2001 would not be applicable to the stalls located at the Baba Kharag Singh Marg market and that the administrative decision of the Cabinet dated 20-10-1989 had ceased to operate. Moreover, the occupant was not in possession of the stall on or before 20-10-1989 and the public notice dated 06-08-2001 specifically stipulated that the earlier decision of the Cabinet dated 20-10-1989 shall cease to operate.

Analysis and Findings

Rejecting the claim of the occupant-respondent upon communication dated 08-07-2008 wherein the Director of Estates had communicated to the Council that all powers to administer the markets shall now rest with Council/MCD and that the Council may take appropriate action in this particular case at their end, the Bench held that the letter dated 08-07-2008 was interdepartmental communication and not any policy decision or circular meant for public. Thus, the Bench stated, interdepartmental communications are not the enforceable orders of the Union or of the Council.

Noticing that there was a clear stipulation in the license deed executed by the predecessor of the occupant that she should not induct any partner or sublet the premises, the Bench remarked,

“…in utter violation of the terms of the license, firstly, the partnership was executed and within two months, it was dissolved. The act of the predecessor of the occupant and the occupant are clearly and unequivocally in contravention of the terms of the license deed.”

The notification dated 24-03-2006 explained that the Council was to function as a lessor or licensee and was to exercise all powers being performed by Land and Development Office, Directorate of Estates and Central Public Works Department, as the case may be. Thus, the rights of Government in administering the markets as a lessor or licensee alone was transferred and not the land or the building thereon and the Council were to administer the properties as a delegate of the Union. Similarly, the regularization/restoration of allotment of shops in para 3 of the Notification was in terms of the policy of the Union and not that of Council as it stated:

“…the guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of…regularization/restoration of allotment of shops may also be followed”.

Thus, the Bench held that if there was a policy of regularization or restoration of the Union, the same was to be followed by the Council which was evident from the fact that the revenue generated from the transfer of markets had to be deposited in a separate corpus of funds to be utilized only for the purpose of development of markets and for no other purpose and such income would not accrue to the Council as a part of their budget. Therefore, the Bench held,

“…the markets transferred by the Government of India to the Council have to be dealt independently and separately than the properties owned by the Council as the Council has no title over such markets as it has been asked only to manage them on behalf of the Government of India.”

Verdict

In the backdrop of above, the Bench held that the orders passed by the High Court were erroneous in law and the same were set aside. The order of eviction affirmed by the Additional District Judge was restored.

[New Delhi Municipal Council v. Ganga Devi, 2021 SCC OnLine SC 803, decided on 27-09-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

Counsel for the Appellant: Yoginder Handoo

Counsel for the Respondents: Anil Kumar Tandale, B. V. Balaram Das and   Aarthi Rajan


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta